| Miller v Bratsilova |
| 2014 NY Slip Op 04176 [118 AD3d 761] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| Jeffrey Miller, Appellant, v Oleg Bratsilova etal., Respondents. |
Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T.Mark of counsel), for appellant.
Kay & Gray (Montfort, Healy, McGuire & Salley, Garden City,N.Y. [Arthur R. Simuro and Donald S. Neumann, Jr.], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Richmond County(Maltese, J.), dated May 6, 2013, as granted the defendants' motion for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion for summary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of showing that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]), as thedefendants' own expert found significant limitations in the range of motion of both of theplaintiff's shoulders.
Since the defendants did not sustain their prima facie burden, it is unnecessary todetermine whether the papers submitted by the plaintiff in opposition were sufficient toraise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851 [1985]; Che Hong Kim vKossoff, 90 AD3d 969 [2011]). Accordingly, the Supreme Court should havedenied the defendants' motion for summary judgment dismissing the complaint. Balkin,J.P., Roman, Sgroi and Miller, JJ., concur.