| Guerrero v Bernstein |
| 2008 NY Slip Op 10126 [57 AD3d 845] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Jose Guerrero et al., Respondents, v Randy Bernstein et al.,Appellants. |
—[*1] Alan M. Sanders, Carle Place, N.Y. (David M. Schwarz of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order ofthe Supreme Court, Suffolk County (R. Doyle, J.), entered December 24, 2007, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff Jose Guerrerodid not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiff Jose Guerrero(hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]). In support of the defendants' motion, they relied upon, inter alia,the medical reports of the injured plaintiff's treating physicians. Those reports revealed the existence ofsignificant limitations of motion in the cervical and thoracic regions of the injured plaintiff's spinal column(see Mendola v Demetres, 212 AD2d 515 [1995]).
Since the defendants did not meet their prima facie burden, it is unnecessary to decide whether thepapers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (seeCoscia v 938 Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P., Dillon, Carni and Leventhal,JJ., concur.