| Delacruz v Ostrich Cab Corp. |
| 2009 NY Slip Op 07577 [66 AD3d 818] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Victor Delacruz, Respondent, v Ostrich Cab Corp. et al.,Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Saitta, J.), dated March 5, 2009, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, without costs or disbursements.
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]). During his examination of the plaintiff, thedefendants' orthopedic surgeon found restrictions in the range of motion of the plaintiff's lumbarspine, which he described as "self-restricted." However, he failed to explain or substantiate withany objective medical evidence the basis for his conclusion that the limitations that were notedwere self-restricted (see Cuevas vCompote Cab Corp., 61 AD3d 812 [2009]; Colon v Chuen Sum Chu, 61 AD3d 805 [2009]; Torres v Garcia, 59 AD3d 705[2009]; Busljeta v Plandome Leasing,Inc., 57 AD3d 469 [2008]). Accordingly, the Supreme Court properly denied thedefendants' motion for summary judgment without considering the sufficiency of the plaintiff'sopposition papers (see Cuevas vCompote Cab Corp., 61 AD3d 812 [2009]; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Mastro, J.P., Dillon, Dickerson, Belen and Lott, JJ., concur.