| Held v Heideman |
| 2009 NY Slip Op 05509 [63 AD3d 1105] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Barbara Held, Appellant, v Richard Heideman et al.,Respondents. |
—[*1] Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Murphy, J.), dated August 20, 2008, which granted thedefendants' 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),and denied, as academic, her cross motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, the defendants' motion forsummary judgment dismissing the complaint is denied, and the matter is remitted to the SupremeCourt, Nassau County, for a determination of the plaintiff's cross motion on the merits.
The defendants failed to meet their 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 their motion, the defendants relied, interalia, upon the affirmed medical report of their examining orthopedic surgeon, in which he notedthe existence of a significant limitation in the range of motion of the plaintiff's lumbar spine(see Torres v Garcia, 59 AD3d 705 [2009]; Bagot v Singh, 59 AD3d 368[2009]; Hurtte v Budget Roadside Care, 54 AD3d 362 [2008]; Jenkins v MiledHacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555, 556 [2007];Zamaniyan v Vrabeck, 41 AD3d 472, 473 [2007]). Under the circumstances, it isunnecessary to consider the sufficiency of the plaintiff's opposition papers (see Torres vGarcia, 59 AD3d 705 [2009]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).
In light of our determination that the defendants' motion for summary judgment should havebeen denied, we remit the matter to the Supreme Court, Nassau County, for a determination ofthe plaintiff's cross motion on the merits (see e.g. Busljeta v Plandome Leasing, Inc., 57AD3d 469 [2008]). Spolzino, J.P., Santucci, Angiolillo, Leventhal and Lott, JJ., concur.