India v. O'Connor

97 A.D.3d 796, 948 N.Y.2d 678

Opinion

Contrary to the Supreme Court’s determination, 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants contended, inter alia, that the alleged injuries to the lumbar region of the plaintiffs spine did not constitute serious injuries within the meaning of Insurance Law § 5102 (d). However, the defendants’ examining orthopedic surgeon recounted, in an affirmed report submitted in support of the defendants’ motion for summary judgment dismissing the complaint, that range-of-motion testing performed during the examination revealed a significant limitation of motion in the lumbar region of the plaintiffs spine (see Scott v Gresio, 90 AD3d 736, 737 [2011]; Nelms v Khokhar, 12 AD3d 426, 427 [2004]). Further, the defendants’ orthopedic surgeon failed to adequately explain and substantiate his belief that the limitation of motion in the lumbar region of the plaintiff’s spine was self-imposed (cf. Perl v Meher, 18 NY3d 208, 219 [2011]; Gonzales v Fiallo, 47 AD3d 760 [2008]).

Since the defendants failed to meet their prima facie burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Cues v Tavarone, 85 AD3d 846, 846-847 [2011]). Rivera, J.P., Eng, Chambers, Sgroi and Miller, JJ., concur.