| Mondert v Iglesia De Dios Pentecostal Cristo Viene, Inc. |
| 2010 NY Slip Op 00118 [69 AD3d 590] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Evelyne Mondert, Respondent, v Iglesia De DiosPentecostal Cristo Viene, Inc., Appellant, et al., Defendant. |
—[*1] Paul G. Vesnaver (Victor A. Carr, Mineola, N.Y., of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Iglesia De DiosPenetecostal Cristo Viene, Inc., appeals from an order of the Supreme Court, Kings County(Schneier, J.), dated January 24, 2008, which denied its motion for summary judgmentdismissing the complaint insofar as asserted against it 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 appellant failed to meet its 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 its motion, the appellant relied on, interalia, the affirmed medical report of its examining neurologist. In that report, he noted that theplaintiff had a significant limitation in her lumbar spine range of motion, and concluded that thedecreased range of motion was "voluntary." However, he failed to explain or substantiate, withobjective medical evidence, the basis for his conclusion that the limitation was voluntary (see Hi Ock Park-Lee v Voleriaperia,67 AD3d 734 [2009]; Cuevas vCompote Cab Corp., 61 AD3d 812 [2009]; Colon v Chuen Sum Chu, 61 AD3d 805 [2009]; Torres v Garcia, 59 AD3d 705[2009]; Busljeta v Plandome Leasing,Inc., 57 AD3d 469 [2008]).
Since the defendants failed to establish their prima facie entitlement to judgment as a matterof law, it is unnecessary to determine whether the plaintiff's opposition papers were sufficient toraise a triable issue of fact (see Hi OckPark-Lee v Voleriaperia, 67 AD3d 734 [2009]; Cuevas v Compote Cab Corp., 61 AD3d 812 [2009]). Fisher, J.P.,Santucci, Dickerson, Chambers and Lott, JJ., concur.