| Iannello v Vazquez |
| 2010 NY Slip Op 08900 [78 AD3d 1121] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Josette Iannello et al., Respondents, v Marcelina Vazquez,Appellant, et al., Defendants. |
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In an action to recover damages for personal injuries, etc., the defendant Marcelina Vazquezappeals from so much of an order of the Supreme Court, Kings County (Schmidt. J.), datedNovember 2, 2009, as denied her motion for summary judgment dismissing the complaint insofaras asserted against her on the ground that the plaintiff Josette Iannello did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellant failed to meet her prima facie burden of showing that the plaintiff JosetteIannello did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa result 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]). In support of her motion, the appellantrelied upon, inter alia, the affirmed medical reports of Dr. Edward Toriello and Dr. RichardLechtenberg. When both doctors examined the injured plaintiff, in June and July 2008,respectively, they noted significant limitations in her lumbar spine range of motion (see Ortizv Orlov, 76 AD3d 1000 [2010]; Cheour v Pete & Sals Harborview Transp., Inc., 76AD3d 989 [2010]; Smith v Hartman, 73 AD3d 736 [2010]; Leopold v New York CityTr. Auth., 72 AD3d 906 [2010]). While Dr. Toriello and Dr. Lechtenberg intimated that thelimitations noted were subjective in nature, they failed to explain or substantiate, with anyobjective medical evidence, the basis for their conclusions that the noted limitations wereself-imposed (see Bengaly v Singh, 68 AD3d 1030 [2009]).
Since the appellant failed to meet her prima facie burden, it is unnecessary to determinewhether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue offact (see Ortiz v Orlov, 76 AD3d 1000 [2010]; Bengaly v Singh, 68 AD3d at1030; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P., Santucci,Angiolillo, Hall and Roman, JJ., concur.