Grant v. Parsons Coach, Ltd.

Nov 15, 2004
Versions:

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Queens County (Dye, J.), dated September 11, 2003, as *485denied their cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The conclusion of the defendants’ examining physician that the plaintiff had no disability or impairment was directly contradicted by his report of the plaintiffs examination, which recorded objectively-measured limitations of range of motion of the plaintiffs cervical and lumbar spine and left shoulder. Since the defendants failed to establish a prima facie case, “it is not necessary to consider whether the [plaintiffs] papers in opposition to the defendants’ motion were sufficient to raise a triable issue of fact” (Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; see Chaplin v Taylor, 273 AD2d 188 [2000]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]).

Accordingly, the Supreme Court properly denied the defendants’ cross motion for summary judgment. Santucci, J.P., Smith, S. Miller, Cozier and Fisher, JJ., concur.