| Bengaly v Singh |
| 2009 NY Slip Op 09599 [68 AD3d 1030] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Younoussa Bengaly, Respondent, v Karnail Singh,Appellant. |
—[*1] Gary B. Pillersdorf & Associates, P.C., New York, N.Y. (Dara L. Warren and Jason M.Bernstein of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), entered March 5, 2009, which denied hismotion 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 Supreme Court properly denied the defendant's motion for summary judgmentdismissing the complaint since he failed to meet his prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of his motion, thedefendant relied on, inter alia, the affirmed medical report of his examining orthopedic surgeon.In his report, which was based on an examination of the plaintiff on February 22, 2008, theorthopedic surgeon noted significant limitations in the plaintiff's cervical spine range of motion(see Chang Ai Chung v Levy, 66 AD3d 946 [2009]; Alvarez v Dematas, 65AD3d 598 [2009]; Landman v Sarcona, 63 AD3d 690 [2009]). While the orthopedicsurgeon concluded that the range-of-motion limitation noted in the cervical spine was a"subjective examination parameter," he failed to explain or substantiate, with any objectivemedical evidence, the basis for his conclusion that the noted limitations were self-restricted(see Moriera v Durango, 65 AD3d 1024 [2009]). While he further opined that theplaintiff's magnetic resonance imaging findings concerning his cervical spine revealed milddegenerative changes, he provided no foundation for this conclusion (see Franchini vPalmieri, 1 NY3d 536 [2003]; see also Buono v Sarnes, 66 AD3d 809 [2009]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment without considering the sufficiency of the plaintiff's opposition papers (see ChangAi Chung v Levy, 66 AD3d at 947; Moriera v Durango, 65 AD3d at 1025;Landman v Sarcona, 63 AD3d at 691). Rivera, J.P., Covello, Angiolillo, Leventhal andRoman, JJ., concur.