Fields v. Hildago

74 A.D.3d 740, 907 N.Y.S.2d 15

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2010
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Jose Hildago and Cal very Center Church appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered September 29, 2009, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The appellants 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their motion, the appellants relied on, inter alia, the affirmed medical report of Dr. Martin Barschi, their examining orthopedic surgeon. Dr. Barschi noted significant limitations in the cervical and lumbar regions of the plaintiffs spine during active range-of-motion testing when he examined the plaintiff more than a year postaccident.

Since the appellants failed to meet their prima facie burden, we need not address the question of whether the plaintiffs submissions raised a triable issue of fact (see Smith v Hartman, 73 AD3d 736, 737 [2010]; Quiceno v Mendoza, 72 AD3d 669 [2010]; Kjono v Fenning, 69 AD3d 581, 582 [2010]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P., Miller, Eng, Hall and Austin, JJ., concur.