| Ortiz v Orlov |
| 2010 NY Slip Op 06623 [76 AD3d 1000] |
| September 21, 2010 |
| Appellate Division, Second Department |
| Malta Ortiz, Appellant, v Andrei Orlov et al.,Respondents. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), forrespondents Elvin Elias, Sean Portillo, and Danis D. Saenz.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (F. Rivera, J.), entered August 17, 2009, which granted themotion of the defendant Andrei Orlov, and the separate motion of the defendants Elvin Elias,Sean Portillo and Danis D. Saenz, for summary judgment dismissing the complaint insofar asasserted against them on the ground that she did not sustain a serious injury within the meaningof Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents, and the motion of the defendant Andrei Orlov, and the separate motion of thedefendants Elvin Elias, Sean Portillo and Danis D. Saenz, for summary judgment dismissing thecomplaint insofar as asserted against them are denied.
The defendants, all of whom relied on the same submissions in support of their respectivemotions, failed to meet their prima facie burdens of 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]). In support of their motions, they relied upon, interalia, the medical reports of the plaintiff's treating physicians. At least two of those reportsrevealed that the plaintiff had significant limitations in her cervical and lumbar spine range ofmotion more than seven months post-accident (see Guerrero v Bernstein, 57 AD3d 845 [2008]; Mendola vDemetres, 212 AD2d 515 [1995]).
Since the defendants did not meet their prima facie burdens, it is unnecessary to decidewhether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issueof fact (see Guerrero v Bernstein, 57 AD3d at 845; Coscia v 938 Trading Corp.,283 AD2d 538 [2001]). Dillon, J.P., Balkin, Chambers and Sgroi, JJ., concur.