| Joissaint v Starrett-1 Inc. |
| 2007 NY Slip Op 09731 [46 AD3d 622] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Wilkie Joissaint, Respondent, v Starrett-1 Inc., et al.,Appellants, et al., Defendant. |
—[*1] Stephen H. Frankel, Woodbury, N.Y. (Nicholas E. Tzaneteas of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Starrett-1 Inc., andEddie Harris appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated April12, 2007, which denied their motion for summary judgment dismissing the complaint insofar asasserted against them on the ground that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants Starrett-1 Inc. and Eddie Harris (hereinafter the appellants) failed to satisfytheir prima facie burden by establishing that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Tourev Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]). Among the medical submissions relied upon by the appellants was the affirmedmedical report of their examining orthopedist. In his report, the examining orthopedist identifiedsignificant limitations in the ranges of motion of the plaintiff's cervical and lumbar spines basedupon his examination of the plaintiff, which took place almost two years after the subjectaccident (see Zamaniyan v Vrabeck,41 AD3d 472, 473 [2007]; Smith v Delcore, 29 AD3d 890 [2006]; Sano v Gorelik, 24 AD3d 747[2005]). Since the appellants failed to meet their initial burden, it is unnecessary to considerwhether the plaintiff's papers, submitted in [*2]opposition, weresufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.