| Washington v Asdotel Enters., Inc. |
| 2009 NY Slip Op 07622 [66 AD3d 880] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Jimmy Washington, Respondent, v Asdotel Enterprises,Inc., et al., Appellants. |
—[*1] Jacoby & Meyers, LLP, Newburgh, N.Y. (Kristine M. Cahill of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Jacobson, J.), dated January 29, 2009, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain 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]). Here, the defendants relied on, inter alia, the affirmedmedical report of Dr. Gregory Montalbano, their examining orthopedic surgeon. During hisexamination of the plaintiff on June 20, 2008, Dr. Montalbano noted significant limitations in theplaintiff's cervical and lumbar spine ranges of motion. While Dr. Montalbano concluded that theplaintiff suffered from pre-existing degenerative disc disease in the cervical and lumbar spine, hedid not address the plaintiff's allegation in his bill of particulars that the subject accidentexacerbated pre-existing degenerative conditions in his cervical and lumbar regions. Thus, thefindings of Dr. Montalbano failed to establish that the limitations noted were not caused by thesubject accident (see McKenzie vRedl, 47 AD3d 775 [2008]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (id.at 775; see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Fisher, J.P., Florio,Angiolillo, Eng and Roman, JJ., concur.