| Chang Ai Chung v Levy |
| 2009 NY Slip Op 07787 [66 AD3d 946] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Chang Ai Chung, Appellant, v Bryan Z. Levy et al.,Respondents. |
—[*1] Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Michelle Perlin of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), datedSeptember 3, 2008, as, upon renewal, in effect, vacated its prior order dated May 30, 2008,denying the defendants' motion for summary judgment dismissing the complaint on the groundthat she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d),and thereupon granted the motion.
Ordered that the order dated September 3, 2008, is reversed insofar as appealed from, on thelaw, with costs, and, upon renewal, the order dated May 30, 2008, denying the defendants'motion 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), is adhered to.
The Supreme Court erred in finding, upon renewal, that the defendants met their prima facieburden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Insupport of their motion, the defendants relied on, inter alia, the affirmed medical report of Dr.Mathew M. Chacko, their examining neurologist. Dr. Chacko examined the plaintiff onNovember 7, 2007. On that date, Dr. Chacko performed various range-of-motion testing on theplaintiff, including cervical spine testing. According to Dr. Chacko's own findings, during thisexamination he noted significant limitations in the plaintiff's cervical spine range of motion (see Cuevas v Compote Cab Corp., 61AD3d 812 [2009]; Colon v ChuenSum Chu, 61 AD3d 805 [2009]). While Dr. Chacko concluded that the decreased rangesof motion were "voluntary," he failed to explain or substantiate, with any objective medicalevidence, the basis for his conclusion that the limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61AD3d 812 [2009]; Colon v ChuenSum Chu, 61 AD3d 805 [2009]; Torres v Garcia, 59 AD3d 705 [2009]; Busljeta v Plandome Leasing, Inc., 57AD3d 469 [2008]).[*2]
Accordingly, the Supreme Court, upon renewal, shouldhave adhered to its original determination denying the defendants' motion for summary judgmentwithout considering the sufficiency of the plaintiff's opposition papers (see Cuevas v Compote Cab Corp., 61AD3d 812 [2009]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Rivera, J.P.,Miller, Balkin, Leventhal and Hall, JJ., concur.