Opinion
2012-05-30
Zethroy WEDDERBURN, appellant, v. Askia A. SIMMONS, respondent.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant. James G. Bilello & Associates, Westbury, N.Y. (Patricia McDonagh of counsel), for respondent.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant. James G. Bilello & Associates, Westbury, N.Y. (Patricia McDonagh of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated May 25, 2011, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he 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 defendant's motion for summary judgment dismissing the complaint is denied.
The defendant failed to meet his 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). Although the defendant asserted that the alleged injuries to the cervical region of the plaintiff's spine did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d at 955–956, 582 N.Y.S.2d 990, 591 N.E.2d 1176), the defendant's examining orthopedist recounted, in his affirmed report submitted in support of the motion, that the range-of-motion testing he performed during his examination revealed the existence of a significant limitation in the region ( see Cues v. Tavarone, 85 A.D.3d 846, 925 N.Y.S.2d 346;Fields v. Hildago, 74 A.D.3d 740, 907 N.Y.S.2d 15). In addition, although the defendant assertedthat the alleged injuries to the region were not caused by the subject accident ( see Pommells v. Perez, 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278), he provided no competent medical evidence supporting that argument ( see Cues v. Tavarone, 85 A.D.3d at 846, 925 N.Y.S.2d 346;Hightower v. Ghio, 82 A.D.3d 934, 935, 919 N.Y.S.2d 43).
Since the defendant failed to meet his prima facie burden, the Supreme Court should have denied the defendant's motion for summary judgment and it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact ( see Fields v. Hildago, 74 A.D.3d at 740, 907 N.Y.S.2d 15).