| Friedman v Albert |
| 2007 NY Slip Op 08033 [44 AD3d 897] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Lawrence Friedman, Respondent, v Pashaj Albert et al.,Appellants. |
—[*1] Bruce Montague & Partners, Bayside, N.Y. (Joseph D. Levy of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Kramer, J.), entered January 29, 2007, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground other than the one reliedupon by the Supreme Court. Contrary to the court's determination, the defendants failed toestablish, prima facie, that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In support of their motion, the defendantsrelied on the affirmed medical report of their examining neurologist, which described significantlimitations in the plaintiff's cervical and lumbar spine range of motion (see Jenkins v Miled Hacking Corp., 43AD3d 393 [2007]; Bentivegna vStein, 42 AD3d 555 [2007]; Zamaniyan v Vrabeck, 41 AD3d 472 [2007]; Brown v Motor Veh. Acc. Indem.Corp., 33 AD3d 832 [2006]).
Since the defendants failed to satisfy their prima facie burden, it is unnecessary to considerwhether the plaintiff's papers in opposition were sufficient to raise a triable issue of fact (see Jenkins v Miled Hacking Corp., 43AD3d 393 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Santucci,J.P., Goldstein, Dillon and Angiolillo, JJ., concur.