| Hi Ock Park-Lee v Voleriaperia |
| 2009 NY Slip Op 08179 [67 AD3d 734] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Hi Ock Park-Lee, Appellant, v Mauricio D. Voleriaperia etal., Respondents. |
—[*1] Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John J. Morris of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Cullen, J.), dated September 29, 2009, 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).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
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 reliedupon, inter alia, the affirmed medical report of their examining neurologist Dr. Monette G.Basson. In her report, Dr. Basson noted that the plaintiff had a significant limitation in herlumbar spine range of motion, and concluded that the decreased range of motion was"voluntary." However, she failed to explain or substantiate, with objective medical evidence, thebasis for her conclusion that the limitation was voluntary (see Cuevas v Compote Cab Corp., 61 AD3d 812 [2009]; Colon v Chuen Sum Chu, 61 AD3d805 [2009]; Torres v Garcia,59 AD3d 705 [2009]; Busljeta vPlandome Leasing, Inc., 57 AD3d 469 [2008]).
Since the defendants failed to establish their prima facie entitlement to judgment as [*2]a matter of law, it is unnecessary to determine whether theplaintiff's opposition papers were sufficient to raise a triable issue of fact (see Cuevas vCompote Cab Corp., 61 AD3d at 812; Colon v Chuen Sum Chu, 61 AD3d at 805;Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Mastro, J.P., Dillon, Dickerson,Belen and Lott, JJ., concur.