| Cuevas v Compote Cab Corp. |
| 2009 NY Slip Op 03125 [61 AD3d 812] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Maribel Cuevas et al., Respondents, v Compote Cab Corp.et al., Appellants. |
—[*1] Harmon, Linder, & Rogowsky (Mitchell Dranow, Mineola, N.Y., of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Battaglia, J.), dated August 4, 2008, which deniedtheir motion for summary judgment dismissing the complaint on the ground that the plaintiffMaribel Cuevas did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.
Ordered that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiff MaribelCuevas did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa 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 foundrestrictions in the range of motion of the plaintiff's lumbar spine, which he described as"self-restricted." However, the neurologist failed to explain or substantiate, with any objectivemedical evidence, the basis for his conclusion that the limitations that were noted wereself-restricted (see Colon v Chuen Sum Chu, 61 AD3d 805 [2009] [decided herewith];Torres v Garcia, 59 AD3d 705[2009]; Busljeta v Plandome Leasing,Inc., 57 AD3d 469 [2008]). Accordingly, the Supreme Court properly denied thedefendants' motion for summary judgment without considering the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Rivera, J.P., Dillon, Covello and Eng, JJ., concur.