| Torres v Knight |
| 2009 NY Slip Op 04359 [63 AD3d 450] |
| June 4, 2009 |
| Appellate Division, First Department |
| Carmen Torres, Appellant, v Cinderetha Knight et al.,Defendants, and Kamnaki Service, Inc., et al., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovitz, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 1, 2008, whichgranted the motion of Kamnaki Service, Inc. and Sidi Sall for summary judgment dismissing thecomplaint as against them, unanimously affirmed, without costs.
Plaintiff does not dispute the motion court's finding that defendants are not liable for the caraccident in which she alleges she sustained a serious injury within the meaning of Insurance Law§ 5102 (d), and she tacitly concedes that she is unable to proceed against any otherdefendant because none are liable except the driver of a stolen car, who was never served in thisaction. We therefore affirm the grant of summary judgment dismissing the complaint on theground that defendants' nonliability was conclusively established.
However, because the court's finding as a matter of law that plaintiff did not sustain a seriousinjury will have collateral estoppel effect on her uninsured motorist claim, the serious injuryissue is not moot, and we therefore address it (see Urbina v 26 Ct. St. Assoc., LLC, 12 AD3d 225 [2004];Tehan v Peters Print. Co., 71 AD2d 101, 104 [1979]). We find that defendants failed todemonstrate their entitlement to summary judgment dismissing the complaint on that ground.
Both defendants' neurology and orthopedics experts reported significant limitations of rangeof motion in plaintiff's cervical and lumbar spine (see Toure v Avis Rent A Car Sys., 98NY2d 345, 353 [2002]), and neither identified a potential cause of the injury other than theaccident (see Diaz v Anasco, 38AD3d 295 [2007]). Rather, the experts opined that plaintiff's limited range of motion wasthe result of lack of effort on her part. However, this opinion was [*2]unsupported by objective medical proof, and therefore it isinsufficient to establish a prima facie case (see Lamb v Rajinder, 51 AD3d 430 [2008]; Busljeta v Plandome Leasing, Inc., 57AD3d 469 [2008]). Concur—Andrias, J.P., Buckley, Moskowitz, DeGrasse andRichter, JJ.