| Kjono v Fenning |
| 2010 NY Slip Op 00110 [69 AD3d 581] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Byron Kjono, Appellant, v Edward Fenning, Defendant,and Morton J. Held et al., Respondents. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E Ferrucci ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), datedNovember 12, 2008, as granted the motion of the defendants Morton Held and Barbara Held forsummary judgment dismissing the complaint insofar as asserted against them on the ground thathe did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendants Morton Held and Barbara Held for summary judgment dismissing thecomplaint insofar as asserted against them is denied.
The defendants Morton Held and Barbara Held (hereinafter the Helds) 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 Helds relied on, inter alia, the affirmed medical report oftheir examining orthopedic surgeon. In that report, which was based on an examination of theplaintiff conducted on January 7, 2008, the orthopedic surgeon noted significant limitations inthe plaintiff's lumbar spine range of motion, and a significant limitation in his cervical spinerange of motion (see Held vHeideman, 63 AD3d 1105, 1106 [2009]; Torres v Garcia, 59 AD3d 705 [2009]; Bagot v Singh, 59 AD3d 368[2009]; Hurtte v Budget RoadsideCare, 54 AD3d 362 [2008]; Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555,556 [2007]; Zamaniyan v Vrabeck,41 AD3d 472, 473 [2007]).
Accordingly, the Supreme Court should have denied the Helds' motion for summaryjudgment dismissing the complaint insofar as asserted against them regardless of the sufficiencyof the plaintiff's opposing papers (see Held v Heideman, 63 AD3d at 1106; Coscia v938 Trading Corp., 283 AD2d 538 [2001]). Rivera, J.P., Covello, Angiolillo, Leventhal andRoman, JJ., concur.