| Moore v Stasi |
| 2009 NY Slip Op 03876 [62 AD3d 764] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Erik Moore, Appellant, v Bart Stasi et al.,Respondents. |
—[*1] Baxter, Smith & Shapiro, P.C., Hicksville, N.Y. (Anne Marie Garcia and Dennis S.Heffernan of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Galasso, J.), entered July 18, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of showing that plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The affirmed medical report of the defendants'examining neurologist noted a clear limitation in the range of motion of the plaintiff's lumbarspine during leg elevation testing, but did not sufficiently quantify the limitation to establish thatit was insignificant (see Marshak vMigliore, 60 AD3d 647 [2009]; Gaccione v Krebs, 53 AD3d 524, 525 [2008]; Giammanco v Valerio, 47 AD3d674, 675 [2008]; Coburn v Samuel,44 AD3d 698, 699 [2007]; Ilesv Jonat, 35 AD3d 537, 538 [2006]; McCrary v Street, 34 AD3d 768, 769 [2006]; Whittaker v Webster Trucking Corp.,33 AD3d 613 [2006]; Yashayev v Rodriguez, 28 AD3d 651, 652 [2006]).
Since the defendants failed to satisfy their initial burden on their motion, it is not necessaryto consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact(see Marshak v Migliore, 60 AD3d at 647; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Mastro, J.P., Miller, Dickerson and Chambers, JJ., concur.