| Moriera v Durango |
| 2009 NY Slip Op 06412 [65 AD3d 1024] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Otto Moriera, Respondent, v Miguel A. Durango et al.,Appellants. |
—[*1] Schwartz Goldstone & Campisi, LLP, South Salem, N.Y. (Annette G. Hasapidis of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Kramer, J.), dated September 22, 2008, whichdenied their 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 affirmed, with costs.
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]). The defendants' orthopedist found restrictions in therange of motion of the cervical and lumbar regions of the plaintiff's spine which he described as"a subjective examination parameter." However, he failed to explain or substantiate, with anyobjective medical evidence, the basis for his conclusion that the noted limitations wereself-restricted (see Busljeta v PlandomeLeasing, Inc., 57 AD3d 469 [2008]). Accordingly, the Supreme Court properly deniedthe defendants' motion for summary judgment without considering the sufficiency of theplaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Spolzino, J.P., Santucci, Angiolillo, Leventhal and Lott, JJ., concur.