| Ortiz v S&A Taxi Corp. |
| 2009 NY Slip Op 09008 [68 AD3d 734] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Luz Marina Ortiz, Respondent, v S&A Taxi Corp. et al.,Appellants. |
—[*1] Krause & Associates, P.C., New York, N.Y. (Karen Gale O'Reilly of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Schmidt, J.), entered April 2, 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.
While we affirm the order appealed from, we do so on a ground other than that relied uponby the Supreme Court. Contrary to the defendants' contention on appeal, they failed to meet theirprima facie burden of showing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]). In support of their motion, the defendants relied, inter alia, upon the affirmed medicalreport of their examining orthopedic surgeon, in which he noted the existence of a significantlimitation in the range of motion, i.e., flexing, of the plaintiff's lumbar spine (see Buono v Sarnes, 66 AD3d 809[2009]; Held v Heideman, 63 AD3d1105 [2009]). While he opined that this limitation was "subjective," he failed to explain orsubstantiate his basis for that conclusion.
Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff'sopposition papers (see Buono vSarnes, 66 AD3d 809 [2009];Held v Heideman, 63 AD3d 1105 [2009]; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Accordingly, the Supreme Court properly denied the defendants' motion forsummary judgment dismissing the complaint. Skelos, J.P., Florio, Balkin, Belen and Austin, JJ.,concur.