| Mondevil v Kumar |
| 2010 NY Slip Op 05737 [74 AD3d 1295] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Daphnee Mondevil, Respondent, v Surinder Kumar et al.,Appellants, et al., Defendants. |
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In an action to recover damages for personal injuries, the defendants Surinder Kumar andParamjit Multani appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.),dated March 3, 2010, which denied their motion for summary judgment dismissing the complaintinsofar as asserted against them on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court did not err in concluding that the appellants failed to meet their primafacie burden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Insupport of their motion, the appellants relied upon, inter alia, the affirmed medical report of theirexamining orthopedic surgeon. The surgeon noted in his report that he found significantlimitations in the plaintiff's cervical and lumbar spine when he examined the plaintiff more thantwo years after the accident (see Smith v Hartman, 73 AD3d 736 [2010]; Quiceno vMendoza, 72 AD3d 669 [2010]; Giacomaro v Wilson, 58 AD3d 802, 803 [2009];McGregor v Avellaneda, 50 AD3d 749, 749-750 [2008]; Wright v AAA Constr.Servs., Inc., 49 AD3d 531 [2008]).
Since the appellants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issueof fact (see Smith v Hartman, 73 AD3d at 736; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Covello, J.P., Angiolillo, Leventhal and Roman, JJ., concur.