| Colon v Chuen Sum Chu |
| 2009 NY Slip Op 03120 [61 AD3d 805] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Francisco Colon, Respondent, et al., Plaintiff, v ChuenSum Chu, Appellant, et al., Defendants. |
—[*1] Mauricio A. Malagon, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Chuen Sum Chu appeals,as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson,J.), dated April 14, 2008, as denied that branch of his motion which was for summary judgmentdismissing the complaint insofar as asserted by the plaintiff Francisco Colon against him on theground that the plaintiff Francisco Colon did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Chuen Sum Chu (hereinafter the appellant) failed to meet his prima facieburden of showing, on his motion for summary judgment, that the plaintiff Francisco Colon didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955, 956-957 [1992]). In support of his motion, he relied on the affirmedmedical report of Barry M. Katzman, an orthopedic surgeon, who examined Francisco more than5½ years after the subject accident. During that examination, Dr. Katzman notedsignificant limitations in Francisco's lumbar spine range of motion (see Powell v Prego, 59 AD3d 417[2009]; Locke v Buksh, 58 AD3d698 [2009]; Hurtte v BudgetRoadside Care, 54 AD3d 362 [2008]; Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555,556 [2007]; Zamaniyan v Vrabeck,41 AD3d 472 [2007]). His explanation that said limitations were "voluntary" wasinsufficient by itself to remedy those findings (see Busljeta v Plandome Leasing, Inc., 57 AD3d 469 [2008]).[*2]
Since the appellant failed to establish his prima facieentitlement to judgment as a matter of law as against Francisco, it is unnecessary to reach thequestion of whether the papers submitted in opposition were sufficient to raise a triable issue offact (see Powell v Prego, 59 AD3d417 [2009]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P.,Florio, Balkin and Belen, JJ., concur.