| Hurtte v Budget Roadside Care |
| 2008 NY Slip Op 06591 [54 AD3d 362] |
| August 12, 2008 |
| Appellate Division, Second Department |
| Michael Hurtte, Respondent, et al., Plaintiffs, v BudgetRoadside Care et al., Defendants, and Neville Thompson, Appellant. |
—[*1] Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the defendant Neville Thompsonappeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 11, 2007,which denied that branch of his motion, made jointly with all the defendants, which was forsummary judgment dismissing the complaint insofar as asserted by the plaintiff Michael Hurtteagainst him on the ground that Michael Hurtte did not sustain a serious injury within the meaningof Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The appellant failed to meet his prima facie burden of showing that the plaintiff MichaelHurtte did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as aresult of the subject accident. The medical report of the appellant's examining orthopedist, Dr.Philip G. Taylor, noted findings of significant range-of-motion limitations (see Jenkins v Miled Hacking Corp., 43AD3d 393 [2007]; Bentivegna vStein, 42 AD3d 555 [2007]). Accordingly, since the appellant failed to meet his primafacie burden, it is unnecessary to consider the sufficiency of the evidence submitted in oppositionto the motion (see Zamaniyan vVrabeck, 41 AD3d 472 [2007]). Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ.,concur.