| Cues v Tavarone |
| 2011 NY Slip Op 05220 [85 AD3d 846] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Seneque Cues, Appellant, v Robert J. Tavarone,Respondent. |
—[*1] Nesci-Keane, PLLC, Hawthorne, N.Y. (Jason M. Bernheimer of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Rockland County (Garvey, J.), dated July 1, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The defendant failed to meet his prima facie burden of showing that the plaintiff, whoallegedly sustained injuries to, among other areas, the cervical region of his spine, as a result ofthe subject accident, did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of that accident (see Toure v Avis Rent A Car Sys., 98 NY2d345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Although the defendantasserted that the alleged injuries to the cervical region of the plaintiff's spine did not constitute aserious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis RentA Car Sys., 98 NY2d at 352; Gaddy v Eyler, 79 NY2d at 955-956), his examiningneurologist recounted, in her affirmed report submitted in support of the motion, that therange-of-motion testing she performed during her examination revealed the existence of certainsignificant limitations in the region (seeFields v Hildago, 74 AD3d 740 [2010]). In addition, although the defendant assertedthat the alleged injuries to the region were not caused by the subject accident (see Pommells v Perez, 4 NY3d566, 579 [2005]), he provided no competent medical evidence supporting that argument (see Hightower v Ghio, 82 AD3d934, 935 [2011]).
Since the defendant failed to meet his prima facie burden, it is unnecessary to considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (seeFields v Hildago, 74 AD3d at 740). Dillon, J.P., Covello, Balkin, Lott and Roman, JJ.,concur.