| Scott v Gresio |
| 2011 NY Slip Op 09111 [90 AD3d 736] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Lisa Scott, Respondent, v Richard M. Gresio,Appellant. |
—[*1] Brown & Gropper, LLP, New York, N.Y. (Joshua Gropper of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Gazzillo, J.), dated March 30, 2011, 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]). The plaintiff alleged, inter alia, that the lumbar regionof her spine sustained certain injuries as a result of the subject accident. Although the defendantasserted that those alleged injuries did not constitute a serious injury within the meaning ofInsurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d at 352;Gaddy v Eyler, 79 NY2d at 955-956), his examining neurologist recounted, in anaffirmed report submitted in support of the motion for summary judgment dismissing thecomplaint, that range-of-motion testing performed during the examination revealed the existenceof a significant limitation of motion in the region (see Walter v Walch, 88 AD3d 872, 872 [2011]; Cues v Tavarone, 85 AD3d 846,846-847 [2011]).
Since the defendant failed to meet his prima facie burden, the Supreme Court properly deniedhis motion for summary judgment dismissing the complaint, without considering whether theplaintiff's opposition papers were sufficient to raise a triable issue of fact (see Cues vTavarone, 85 AD3d at 846-847). Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.