| Busljeta v Plandome Leasing, Inc. |
| 2008 NY Slip Op 09546 [57 AD3d 469] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Annmary Busljeta et al., Appellants, v Plandome Leasing, Inc.,et al., Respondents. |
—[*1] Law Office of Robert J. Adams, Jr., LLC, Garden City, N.Y. (Maryellen David of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Nassau County (O'Connell, J.), dated August 27, 2007, which granted the defendants'motion for summary judgment dismissing the complaint on the ground that the plaintiff Annmary Busljetadid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and, in effect,denied, as academic, the plaintiffs' cross motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, the defendants' motion for summaryjudgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, NassauCounty, for a determination of the cross motion on the merits.
The defendants failed to meet their prima facie burden of showing that the plaintiff AnnmaryBusljeta (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of InsuranceLaw § 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'neurologist failed to explain or substantiate, with any objective medical evidence, the basis for hisconclusion that the restrictions in cervical motion that were noted as part of his qualitative assessmentwere self-imposed (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; cf. Gonzales v Fiallo, 47 AD3d 760[2008]; Style v Joseph, 32 AD3d212 [2006]). Accordingly, the Supreme Court should have denied the defendants' motion forsummary judgment regardless of the sufficiency of the opposing papers (see Winegrad v New YorkUniv. Med. [*2]Ctr., 64 NY2d 851, 853 [1985]).
In light of our determination that the defendants' motion for summary judgment should have beendenied, we remit the matter to the Supreme Court, Nassau County, for a determination of the crossmotion on the merits (see e.g. Scavuzzo vCity of New York, 47 AD3d 793, 795 [2008]).
The defendants' remaining contention is without merit. Skelos, J.P., Dillon, Carni and Leventhal,JJ., concur.