| Rabinowitz v Kahl |
| 2010 NY Slip Op 07914 [78 AD3d 678] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Irene Rabinowitz, Respondent, v Thomas Kahl et al.,Appellants. |
—[*1] Abbott Bushlow & Schechner, LLP, Ridgewood, N.Y. (Richard Schechner of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of theSupreme Court, Suffolk County (Whelan, J.), entered January 5, 2010, which denied their motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
Contrary to the defendants' contention, they failed to meet their prima facie burden of showing thatthe plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as aresult of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Here, the defendants relied on, inter alia, theaffirmed medical report of Dr. William A. Healy, their examining orthopedic surgeon. During hisexamination of the plaintiff on February 11, 2009, he noted significant limitations in the plaintiff's cervicaland lumbar spine ranges of motion. He concluded that the plaintiff may have suffered from anaggravation of preexisting degenerative disc disease in her cervical and lumbar spine. The plaintiffalleged in her bill of particulars that the subject accident aggravated and/or exacerbated preexistingdegenerative conditions in her cervical and lumbar regions. Thus, the findings of this expert failed toestablish that the limitations noted by him were not caused by the subject accident (see Washington v Asdotel Enters., Inc., 66AD3d 880 [2009]; McKenzie vRedl, 47 AD3d 775 [2008]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whetherthe plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Washington vAsdotel Enters. Inc., 66 AD3d at 880; McKenzie v Redl, 47 AD3d at 775; Coscia v938 Trading Corp., 283 AD2d 538 [2001]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ.,concur.