| Torres v Garcia |
| 2009 NY Slip Op 01467 [59 AD3d 705] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Francisco Torres, Respondent, v Israel Garcia et al.,Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated June 17, 2008, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, without costs or disbursements.
The defendants failed to meet their prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident. In support of their motion, the defendants relied, inter alia, on the affirmedmedical report of their examining orthopedic surgeon. In that report, the orthopedic surgeonnoted the existence of significant range-of-motion limitations in the plaintiff's cervical spine (see Hurtte v Budget Roadside Care, 54AD3d 362 [2008]; Jenkins v MiledHacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555, 556 [2007]; Zamaniyan v Vrabeck, 41 AD3d472, 473 [2007]). The defendants' orthopedic surgeon failed to explain or substantiate, withobjective medical evidence, the basis for his conclusion that the restrictions in cervical motionwere self-imposed.
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider thesufficiency of the evidence submitted in opposition to the motion (see Hurtte v Budget Roadside Care, 54AD3d 362 [2008]). Mastro, J.P., Fisher, Florio, Carni and Eng, JJ., concur.