Opinion
06-15-2016
Dominick SALVEMINI, appellant, v. TWINCO SUPPLY CORP., et al., respondents.
Harold Solomon, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for appellant. Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Valerie L. Siragusa of counsel), for respondents.
Harold Solomon, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for appellant.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Valerie L. Siragusa of counsel), for respondents.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated March 30, 2015, which 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.
In support of their motion for summary judgment dismissing the complaint, 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 submitted, inter alia, the affirmed report of Edward A. Toriello, an orthopedic surgeon, who reviewed the plaintiff's medical records and performed a physical examination of the plaintiff at the request of the defendants. Upon examining the plaintiff, Toriello found that the plaintiff had significant limitations in the range of motion in the cervical and lumbar regions of his spine. Toriello's conclusion that the limitations were self-imposed was not adequately explained or substantiated with objective medical evidence (see Mercado v. Mendoza, 133 A.D.3d 833, 834, 19 N.Y.S.3d 757 ; Uvaydov v. Peart, 99 A.D.3d 891, 951 N.Y.S.2d 912 ; India v. O'Connor, 97 A.D.3d 796, 796, 948 N.Y.S.2d 678 ; see also Rivera v. Losee, 138 A.D.3d 713, 27 N.Y.S.3d 890). Moreover, the defendants also submitted a medical report of one of the plaintiff's own treating physicians who opined that the plaintiff's limitations in the range of motion in the cervical and lumbar regions of his spine were causally related to the subject motor vehicle accident (see Balram v. CJ Transp., LLC, 127 A.D.3d 796, 797, 6 N.Y.S.3d 606 ; Positko v. Krawiec, 6 A.D.3d 517, 518, 774 N.Y.S.2d 395 ).
In light of our determination, we need not address the sufficiency of the plaintiff's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
CHAMBERS, J.P., HALL, AUSTIN and LaSALLE, JJ., concur.