Opinion
2018–01343 Index No. 513397/15
09-11-2019
Jacques C. MONDESIR, Appellant, v. Khalil A. AHMED, et al., Respondents.
Law Offices of Michael S. Lamonsoff, PLLC, New York, N.Y. (Stacey Haskel of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Robert D. Grace of counsel), for respondents.
Law Offices of Michael S. Lamonsoff, PLLC, New York, N.Y. (Stacey Haskel of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Robert D. Grace of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated December 15, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 is denied.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident on July 10, 2015. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. By order dated December 15, 2017, the Supreme Court granted the defendants' motion, and the plaintiff appeals.
The defendants failed to meet their prima facie burden of showing that the plaintiff 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, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). One of the defendants' experts found significant limitations in the range of motion of the cervical region of the plaintiff's spine and failed to adequately explain and substantiate, with competent medical evidence, his belief that the limitations were self-imposed (see Singleton v. F & R Royal, Inc., 166 A.D.3d 837, 838, 88 N.Y.S.3d 81 ; Rivas v. Hill, 162 A.D.3d 809, 810–811, 79 N.Y.S.3d 225 ; Miller v. Ebrahim, 134 A.D.3d 915, 916, 20 N.Y.S.3d 538 ; Mercado v. Mendoza, 133 A.D.3d 833, 834, 19 N.Y.S.3d 757 ; Miller v. Bratsilova, 118 A.D.3d 761, 987 N.Y.S.2d 444 ).
Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff 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.
SCHEINKMAN, P.J., HINDS–RADIX, LASALLE and BARROS, JJ., concur.