| Cheour v Pete & Sals Harborview Transp., Inc. |
| 2010 NY Slip Op 06614 [76 AD3d 989] |
| September 21, 2010 |
| Appellate Division, Second Department |
| Theresa A. Cheour, Appellant, v Pete & Sals HarborviewTransportation, Inc., et al., Respondents. |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated November 5, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she didnot 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 defendants' motion forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to demonstrate, primafacie, that 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., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of theirmotion, the defendants relied on, inter alia, the affirmed medical report of Dr. S. Farkas. In hisreport, Dr. Farkas, an orthopedist, noted during lumbar testing that the plaintiff had a "jog" offlexion and lateral bending, but he failed to compare those findings to what is normal (see Spanos v Harrison, 67 AD3d893 [2009]; Gibson-Wallace vDalessandro, 58 AD3d 679 [2009]). Furthermore, Dr. Farkas noted during hisexamination of the plaintiff that she had significant limitations in cervical spine, left knee, andleft shoulder range of motion (seeMondevil v Kumar, 74 AD3d 1295 [2010]; Smith v Hartman, 73 AD3d 736 [2010]; Quiceno v Mendoza, 72 AD3d 669[2010]; Giacomaro v Wilson, 58AD3d 802 [2009]; McGregor vAvellaneda, 50 AD3d 749 [2008]; Wright v AAA Constr. Servs., Inc., 49 AD3d 531 [2008]). WhileDr. Farkas stated that the plaintiff presented with "extreme exaggeration of symptoms" and thatthe decreased ranges of motion noted by him were "not true pathologic findings" and wereinstead exaggerated subjective complaints, he failed to explain or substantiate those conclusionswith any objective medical evidence (see Reitz v Seagate Trucking, Inc., 71 AD3d 975 [2010]; Bengaly v Singh, 68 AD3d 1030[2009]; Ortiz v S&A Taxi Corp., 68AD3d 734 [2009]).
The defendants also relied on the affirmed medical report of Dr. Sarasavani Jayaram, aneurologist, which also set forth significant limitations in the plaintiff's lumbar spine range ofmotion when the plaintiff was examined (see Mondevil v Kumar, 74 AD3d at 1295;Smith v [*2]Hartman, 73 AD3d at 736; Quiceno vMendoza, 72 AD3d at 669; Giacomaro v Wilson, 58 AD3d at 802).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise atriable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Mastro,J.P., Florio, Dickerson, Belen and Lott, JJ., concur.