| Feaster v Boulabat |
| 2010 NY Slip Op 07230 [77 AD3d 440] |
| October 12, 2010 |
| Appellate Division, First Department |
| Joanne Feaster, Respondent, v Thami Boulabat et al.,Appellants. |
—[*1] Shayne, Dachs, Corker, Sauer & Dachs, Mineola (Jonathan A. Dachs of counsel), forrespondent.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered April 20, 2010, which, tothe extent appealed from, denied defendants' motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Defendants failed to meet their initial burden of establishing prima facie that plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). Their examining orthopedistfound limitations in range of motion in plaintiff's cervical and lumbar spines and both knees, and opinedthat these were attributable to degenerative changes. However, plaintiff testified that she had beenasymptomatic before her car accident, and her orthopedic surgeon opined in a report submitted bydefendants that plaintiff's injuries were causally related to the accident. Moreover, defendants'orthopedist's opinion that, while plaintiff may have sustained injuries to her cervical and lumbar spinesand left knee in the accident, these injuries had resolved, is belied by the limitations in range of motionthat he found in those areas (see Pommells vPerez, 4 NY3d 566, 577-578 [2005]; Linton v Nawaz, 62 AD3d 434, 438-439 [2009], affd 14NY3d 821 [2010]). In view of defendants' failure to establish their prima facie case, we need notconsider the sufficiency of plaintiff's opposition (Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]; Glynn vHopkins, 55 AD3d 498, 498 [2008]).
The report of defendants' orthopedist suggesting that plaintiff's injuries had resolved was based onan examination of plaintiff performed almost one year after the subject accident and was thus insufficientto show that plaintiff did not sustain a 90/180-day injury (see Toussaint v Claudio, 23 AD3d 268, 268 [2005]).Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acosta and RomÁn, JJ.