Opinion
04-06-2016
Malissa A. RIVERA, respondent, v. Russell C. LOSEE, appellant.
Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel), for appellant. Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for respondent.
Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel), for appellant.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Rouse, J.), dated May 1, 2015, which denied his 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 affirmed, with costs.
The defendant, whose expert found a significant limitation in the range of motion in the lumbar region of the plaintiff's spine, failed to meet his prima facie burden of demonstrating 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; 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 defendant failed to meet his 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 properly denied the defendant's motion for summary judgment dismissing the complaint.
BALKIN, J.P., AUSTIN, SGROI and LaSALLE, JJ., concur.