Tricarico v. Vicale

5 A.D.3d 761, 773 N.Y.S.2d 572

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated June 3, 2003, which denied his 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).

Ordered that the order is affirmed, with costs.

In support of his motion, the defendant submitted affirmations of an orthopedist and a neurologist, both of whom examined the plaintiff and reviewed magnetic imaging resonance reports which revealed that the plaintiff had disc herniations at L4-L5 and L5-S1 and a tear of the posterior horn of the medial meniscus of the left knee. In addition, according to the affirmation of the defendant’s examining orthopedist, tests he performed indicated that the plaintiff had limitations of range of motion.

The defendant failed to establish his prima facie entitlement to summary judgment. The evidence submitted in support of the motion failed to demonstrate that the plaintiffs injuries were not causally related to the accident, or that they were not serious, within the meaning of Insurance Law § 5102 (d) (see Jones v Jacob, 1 AD3d 485, 486 [2003]; Shin v Torres, 295 AD2d 495, 496 [2002]). Thus, the defendant’s motion for summary judgment was properly denied based on the insufficiency of the moving papers, and we need not consider the sufficiency of the plaintiff’s papers in opposition to the motion (see Franca v Parisi, 298 AD2d 554 [2002]). Santucci, J.P., Smith, Luciano and Adams, JJ., concur.