Opinion
12-16-2015
Aishah MILLER, appellant, et al., plaintiff, v. Anis EBRAHIM, et al., respondents.
Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Christina A. Marshall of counsel), for respondents.
Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Christina A. Marshall of counsel), for respondents.
In a consolidated action to recover damages for personal injuries, the plaintiff Aishah Miller appeals from an order of the Supreme Court, Queens County (Gavrin, J.), entered October 31, 2014, which granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Aishah Miller is denied.
The defendants failed to meet their prima facie burden of demonstrating that the plaintiff Aishah Miller did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 955–956, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). One of the defendants' experts found significant limitations in the range of motion in the lumbar region of her spine (see Miller v. Bratsilova, 118 A.D.3d 761, 987 N.Y.S.2d 444 ), and he failed to adequately explain and substantiate his belief that the limitations were self-imposed (see India v. O'Connor, 97 A.D.3d 796, 948 N.Y.S.2d 678 ; cf. Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182 ).
Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by Miller in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted by Miller.
MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.