| Landman v Sarcona |
| 2009 NY Slip Op 04390 [63 AD3d 690] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Harriet N. Landman, Appellant, v Lisa M. Sarcona,Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Lally, J.), dated April 1, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that theplaintiff did not 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 defendant's motion forsummary judgment dismissing the complaint is denied.
The defendant failed to meet her 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 (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In support of her motion, the defendant relied, interalia, upon the affirmed medical reports of Dr. Mathew Chacko and Dr. Vartkes Khachadurian.Dr. Chacko, the defendant's examining neurologist, noted significant limitations in the plaintiff'scervical and lumbar spine ranges of motion when he examined her on May 2, 2007, some2½ years after the accident (seeBagot v Singh, 59 AD3d 368 [2009]; Hurtte v Budget Roadside Care, 54 AD3d 362 [2008]; Jenkins v Miled Hacking Corp., 43AD3d 393 [2007]; Bentivegna vStein, 42 AD3d 555 [2007]; Zamaniyan v Vrabeck, 41 AD3d 472 [2007]). Moreover, themedical report of Dr. Khachadurian, the defendant's examining orthopedic surgeon, noted asignificant limitation in the plaintiff's cervical spine range of motion when he examined her onMarch 21, 2007. Dr. Khachadurian opined that such limitation was due to the plaintiff's age andevidence of degenerative disease in her cervical spine. However, such opinion was conclusory(see Powell v Prego, 59 AD3d417 [2009]).[*2]
Since the defendant failed to establish her prima facieentitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of theplaintiff's opposition (see Bagot vSingh, 59 AD3d 368 [2009]; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Rivera, J.P., Dillon, Florio and Eng, JJ, concur.