| Artis v Lucas |
| 2011 NY Slip Op 03983 [84 AD3d 845] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Don Artis, Respondent, v Pedro Lucas,Appellant. |
—[*1] Louis Grandelli, P.C., New York, N.Y. (Leigh D. Eskenasi of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Jacobson, J.), dated November 9, 2010, which denied hismotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant failed to meet his prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In support of his motion, the defendant relied upon,inter alia, the affirmed medical report of Dr. Alan M. Crystal. When this doctor examined theplaintiff in February 2010, he noted significant limitations in the range of motion of the lumbarregion of the plaintiff's spine (see Ortizv Orlov, 76 AD3d 1000, 1001 [2010]; Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989[2010]; Smith v Hartman, 73 AD3d736 [2010]; Leopold v New YorkCity Tr. Auth., 72 AD3d 906 [2010]). Although Dr. Crystal indicated that the limitationsnoted were subjective in nature, he failed to explain or substantiate the basis for his conclusionthat the noted limitations were self-imposed with any objective medical evidence (see Iannello v Vazquez, 78 AD3d1121 [2010]; Granovskiy vZarbaliyev, 78 AD3d 656 [2010]; cf. Perl v Meher, 74 AD3d 930 [2010]; Bengaly v Singh, 68 AD3d 1030,1031 [2009]; Moriera v Durango,65 AD3d 1024, 1024-1025 [2009]; Torres v Garcia, 59 AD3d 705, 706 [2009]; Busljeta v Plandome Leasing, Inc., 57AD3d 469 [2008]).
Since the defendant failed to meet his prima facie burden, it is unnecessary to determinewhether the plaintiff's papers submitted in opposition were sufficient to raise a triable issue offact (see Iannello v Vazquez, 78 AD3d at 1121; Ortiz v Orlov, 76 AD3d at 1001;Bengaly v Singh, 68 AD3d at 1031; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Rivera, J.P., Angiolillo, Eng, Chambers and Sgroi, JJ., concur.