Opinion
No. 2006-09643.
December 18, 2007.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated August 16, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Gershbaum Weisz, P.C., New York, N.Y. (Charles Gershbaum of counsel), for appellants.
Cheven, Keely Hatzis, New York, N.Y. (Mayu Miyashita of counsel), for respondents.
Before Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ.
Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.
The defendants failed to make a prima facie showing that the plaintiffs 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants did not provide any objective evidentiary basis for their expert orthopedist's opinion that each of the plaintiffs enjoyed a "full range of motion" and that the plaintiff Nikolai Paradizov experienced only "slight restrictions of motion of the back" which, in the expert's view, were "entirely ascribable" to a subsequent accident ( Coburn v Samuel, 44 AD3d 698; see Cedillo v Rivera, 39 AD3d 453). Therefore, the defendants' motion for summary judgment dismissing the complaint should have been denied ( see Ayotte v Gervasio, 81 NY2d 1062), regardless of the sufficiency of the plaintiffs' opposition ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).