| Chun Ok Kim v Orourke |
| 2010 NY Slip Op 01613 [70 AD3d 995] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Chun Ok Kim, Appellant, v Mark J. Orourke,Respondent. |
—[*1] Muscarella & Diraimo, LLP (Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y.[Elizabeth M. Hecht], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Weiss, J.), entered February 17, 2009, which granted thedefendant's 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 defendant's motion forsummary judgment dismissing the complaint is denied.
The defendant failed to make a prima facie showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The defendant's own examining neurologist reportedfindings of limitations in the ranges of motion in the cervical and lumbar regions of the injuredplaintiff's spine (see Powell v Prego, 59 AD3d 417 [2009]; Norme v Ajons, 57AD3d 749 [2008]; Wright v AAA Constr. Servs., Inc., 49 AD3d 531 [2008]; Umar vOhrnberger, 46 AD3d 543 [2007]; Bentivegna v Stein, 42 AD3d 555 [2007]), and hefailed to "explain or substantiate, with any objective medical evidence, the basis for hisconclusion that the noted limitations were self-restricted" (Bengaly v Singh, 68 AD3d1030, 1031 [2009]; see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734 [2009]; ChangAi Chung v Levy, 66 AD3d 946 [2009]; Moriera v Durango, 65 AD3d 1024 [2009]).Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law,we need not examine the sufficiency of the plaintiff's opposition papers (see Held vHeideman, 63 AD3d 1105 [2009]; Landman v Sarcona, 63 AD3d 690 [2009];Alam v Karim, 61 AD3d 904 [2009]; Liautaud v Joseph, 59 AD3d 394 [2009]).Fisher, J.P., Santucci, Angiolillo, Hall and Lott, JJ., concur.