| Rocourt v Alvelo |
| 2010 NY Slip Op 09905 [79 AD3d 1120] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Fritz Rocourt, Appellant, v Melmartis Alvelo et al.,Respondents. |
—[*1] White Fleischner & Fino, LLP, New York, N.Y. (Jennifer L. Coviello of counsel), forrespondent Melmartis Alvelo. Morris Duffy Alfonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M.Alonso of counsel), for respondents Rajiu R. Latchman and Candice Jarome-Davis. James G. Bilello & Associates, Westbury, N.Y. (Patricia McDonagh of counsel), forrespondents Junior A. Williams and Karen M. Rose.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated September 1, 2009, which granted theseparate motions of the defendant Melmartis Alvelo, the defendants Rajiu R. Latchman andCandice Jarome-Davis, and the defendants Junior A. Williams and Karen M. Rose for summaryjudgment dismissing the complaint insofar as asserted against each of those defendants on theground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Ordered that the order is reversed, on the law, with one bill of costs to the plaintiff, payableby the defendants appearing separately and filing separate briefs, and the defendants' separatemotions for summary judgment dismissing the complaint insofar as asserted against each of themare denied.
Contrary to the Supreme Court's determination, the defendants failed to meet their respectiveprima facie burdens of showing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]). In support of their respective motions, the defendants relied on, among other things, theaffirmed medical report of Dr. Alan J. Zimmerman, an orthopedic surgeon, dated October 22,2008, who opined that the plaintiff had significant limitations in his lumbar spine range ofmotion resulting from the subject accident (see Mondevil v Kumar, 74 AD3d 1295 [2010]; Smith v Hartman, 73 AD3d 736[2010]; Quiceno v Mendoza, 72AD3d 669 [2010]; Giacomaro vWilson, 58 AD3d 802 [2009]).
[*2]Since the defendants failed to meet their respective primafacie burdens, it is unnecessary to consider whether the papers submitted by the plaintiff inopposition were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp.,283 AD2d 538 [2001]). Skelos, J.P., Angiolillo, Hall and Roman, JJ., concur.