| Kharzis v PV Holding Corp. |
| 2010 NY Slip Op 08901 [78 AD3d 1122] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Inna Kharzis, Appellant, et al., Plaintiff, v PV HoldingCorp. et al., Respondents. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Douglas E. Hommel of counsel),for respondent Tzvi P. Tropper. Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J.Mitola of counsel), for plaintiff Mark Kharzis.
In an action to recover damages for personal injuries, the plaintiff Inna Kharzis appeals, aslimited by her brief, from so much of an order of the Supreme Court, Nassau County (Murphy,J.), dated June 30, 2009, as granted those branches of the defendants' separate motions whichwere for summary judgment dismissing the complaint insofar as asserted by her against each ofthem on the ground that she did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the appellant payable by the defendants, and those branches of the defendants' motions whichwere for summary judgment dismissing the complaint insofar as asserted by the appellant againsteach of them are denied.
On the morning of March 31, 2006, on the Staten Island Expressway, the plaintiff InnaKharzis (hereinafter the plaintiff) was a passenger in a car driven by her husband when it wasinvolved in a collision with a motor vehicle owned by the defendant PV Holding Corp.(hereinafter PV) and operated by the defendant Tzvi P. Tropper. The plaintiff and her husbandcommenced this action against PV and Tropper. PV moved for summary judgment dismissingthe complaint insofar as asserted against it on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). Tropper separately movedfor summary judgment dismissing the complaint insofar as asserted against him. The SupremeCourt, inter alia, granted these motions, and the plaintiff appeals from so much of the SupremeCourt's order as granted those branches of the motions which were for summary judgmentdismissing the complaint insofar as asserted by her against each of the defendants. We reversethe order insofar as appealed from.[*2]
On their motions for summary judgment, the defendantshad the burden of establishing prima facie that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the accident (see Toure v AvisRent A Car Sys., 98 NY2d 345, 352 [2002]; Museau v New York City Tr. Auth., 34AD3d 772 [2006]). In support of their motions, the defendants submitted, inter alia, a reportdated March 6, 2008, by James B. Sarno, a neurologist, who conducted an independent medicalexamination of the plaintiff two years after the accident. In his report, Dr. Sarno concluded thatthe plaintiff sustained sprains of the lumbar and cervical areas of her spine as a result of theaccident. He noted significant limitations in range of motion on both left and right lateral rotationof the cervical area of her spine. Moreover, Dr. Sarno did not attribute these limitations to anycause other than the sprain sustained in the March 2006 accident. Since the defendants' movingpapers failed to establish their prima facie entitlement to judgment as a matter of law (seeLevin v Khan, 73 AD3d 991 [2010]; Moore v Stasi, 62 AD3d 764, 765 [2009];Ali v Rivera, 52 AD3d 445 [2008]; Dux v Maddaloni, 51 AD3d 967, 968[2008]), their motions should have been denied without regard to the sufficiency of the plaintiff'spapers submitted in opposition (see Moore v Stasi, 62 AD3d at 765; McMillian vNaparano, 61 AD3d 943 [2009]; Yung v Eager, 51 AD3d 638, 639 [2008]). Fisher,J.P., Florio, Leventhal and Hall, JJ., concur.