| Croyle v Monroe Woodbury Cent. School Dist. |
| 2010 NY Slip Op 02505 [71 AD3d 944] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Albert Croyle, Respondent, v Monroe Woodbury CentralSchool District et al., Appellants. |
—[*1] DeProspo, Petrizzo & Longo (Steven A. Kimmel, Washingtonville, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Orange County (Owen, J.), dated August 10, 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 different from that reliedupon by the Supreme Court. Contrary to the Supreme Court's determination, the defendantsfailed to meet their prima facie burden of showing that the plaintiff did not sustain a seriousinjury 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, 79NY2d 955, 956-957 [1992]). In support of their motion, the defendants relied upon, inter alia, theaffirmed medical report of Denise McHale, their examining neurologist. Dr. McHale, whoexamined the plaintiff on May 5, 2008, noted significant limitations in the range-of-motion ofthe plaintiff's cervical spine on that date (see Kjono v Fenning, 69 AD3d 581 [2010]; Held v Heideman, 63 AD3d 1105,1106 [2009]; Torres v Garcia, 59AD3d 705 [2009]; Bagot vSingh, 59 AD3d 368 [2009]; Hurtte v Budget Roadside Care, 54 AD3d 362 [2008]; Jenkins v Miled Hacking Corp., 43AD3d 393 [2007]; Bentivegna vStein, 42 AD3d 555, 556 [2007]; Zamaniyan v Vrabeck, 41 AD3d 472, 473 [2007]). Since thedefendants failed to meet their initial burden, their motion should have been denied withoutregard to the sufficiency of the plaintiff's opposition papers (see Kjono v Fenning, 69 AD3d 581 [2010]; Held v Heideman, 63 AD3d 1105[2009]). Mastro, J.P., Santucci, Dickerson, Belen and Austin, JJ., concur.