| Quiceno v Mendoza |
| 2010 NY Slip Op 02938 [72 AD3d 669] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Ramon Quiceno, Respondent, v Oscar G. Mendoza et al.,Appellants. |
—[*1] Taller & Wizman, P.C., Forest Hills, N.Y. (Y. David Taller of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Ambrosio, J.), dated May 4, 2009, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious 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 grounds different from those reliedupon by the Supreme Court. The defendants failed to meet their prima facie burden of showingthat the plaintiff 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 NY2d345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their motion,the defendants relied on, inter alia, the affirmed medical report of Dr. Michael P. Rafiy, theirexamining orthopedic surgeon. In his report, Dr. Rafiy noted significant limitations in the rangeof motion of the plaintiff's right shoulder (see Giacomaro v Wilson, 58 AD3d 802, 803 [2009]; McGregor v Avellaneda, 50 AD3d749, 749-750 [2008]; Wright vAAA Constr. Servs., Inc., 49 AD3d 531 [2008]). While he concluded that the range ofmotion was "self-limited," he failed to explain or substantiate, with any objective medicalevidence, the basis for his conclusion that the limitations that were noted were self-limited (see Chun Ok Kim v Orourke, 70 AD3d995 [2010]; Mondert v Iglesia DeDios Pentecostal Cristo Viene, Inc., 69 AD3d 590, 590-591 [2010]; Bengaly v Singh, 68 AD3d 1030,1031 [2009]; Hi Ock Park-Lee vVoleriaperia, 67 AD3d 734, 734-735 [2009]; Chang Ai Chung v Levy, 66 AD3d 946, 947 [2009]; Delacruz v Ostrich Cab Corp., 66AD3d 818, 819 [2009]; Cuevas vCompote Cab Corp., 61 AD3d 812 [2009]; Colon v Chuen Sum Chu, 61 AD3d 805, 806 [2009]; Torres v Garcia, 59 AD3d 705,706 [2009]; Busljeta v PlandomeLeasing, Inc., 57 AD3d 469 [2008]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiff in opposition to the defendants' motion weresufficient to raise a triable issue of fact (see Chang Ai Chung v Levy, 66 AD3d at 947;Cuevas v [*2]Compote Cab Corp., 61 AD3d at 812-813).Fisher, J.P., Covello, Balkin, Leventhal and Lott, JJ., concur.