| Torres v Torrano |
| 2010 NY Slip Op 09909 [79 AD3d 1124] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Manuel Torres, Respondent, v Anna Marie Torrano,Appellant. |
—[*1] Sobo & Sobo, LLP, Middletown, N.Y. (Suzan D. Paras and Gregory M. Sobo of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Orange County (Bartlett, J.), entered July 21, 2010, which denied her motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court properly determined that the defendant failed to meet her prima facieburden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Insupport of her motion, the defendant relied upon, inter alia, the affirmed medical report of aneurologist who examined the plaintiff nearly three years after the accident, and noted significantrange-of-motion limitations in the cervical region of the plaintiff's spine. In view of theneurologist's findings, the defendant failed to establish her prima facie entitlement to judgment asa matter of law (see Mondevil vKumar, 74 AD3d 1295, 1296 [2010]; Smith v Hartman, 73 AD3d 736 [2010]; Quiceno v Mendoza, 72 AD3d 669[2010]; Giacomaro v Wilson, 58AD3d 802, 803 [2009]; McGregorv Avellaneda, 50 AD3d 749, 750 [2008]; Wright v AAA Constr. Servs., Inc., 49 AD3d 531, 532 [2008]).
Since the defendant failed to meet her prima facie burden, it is unnecessary to considerwhether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise atriable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Rivera,J.P., Covello, Eng, Leventhal and Austin, JJ., concur.