Baudillo v. Pam Car & Truck Rental, Inc.

23 A.D.3d 420, 803 N.Y.S.2d 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Pam Car & Truck Rental, Inc., appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated January 3, 2005, which denied its motion for summary judgment dismissing the complaint on the ground that the plaintiff Mas Vega Baudillo did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, without costs or disbursements.

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). “Notably, the report of the defendants’ orthopedist specified the degrees of the range of motion in the plaintiffs cervical spine without comparing these findings to the normal range of motion. Thus, the defendants’ proof failed to objectively demonstrate that the plaintiff did not suffer a permanent consequential or significant limitation of use of his cervical spine as a result of the subject accident” (Aronov v Leybovich, 3 AD3d 511, 512 [2004]; see Claude v Clements, 301 AD2d 554 [2003]). Since the defendant failed to meet its initial burden of establishing a prima facie case, it was unnecessary “to consider whether the plaintiffs’ papers in opposition to the defendants’ motion were sufficient to raise a triable issue of fact” (Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; see also Facci v Kaminsky, 18 AD3d 806 [2005]; Lesane v Tejada, 15 AD3d 358 [2005]). Cozier, J.P., Santucci, Luciano, Fisher and Covello, JJ., concur.