Hurtte v. Budget Roadside Care

Aug 12, 2008
Versions:54 A.D.3d 362
861 N.Y.S.2d 949

Michael Hurtte, Respondent, et al., Plaintiffs, v Budget Roadside Care et al., Defendants, and Neville Thompson, Appellant. [861 NYS2d 949]—In an action to recover damages for personal injuries, etc., the defendant Neville Thompson appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 11, 2007, which denied that branch of his motion, made jointly with all the defendants, which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Michael Hurtte against him on the ground that Michael Hurtte did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The appellant failed to meet his prima facie burden of showing that the plaintiff Michael Hurtte did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The medical report of the appellant‘s examining orthopedist, Dr. Philip G. Taylor, noted findings of significant range-of-motion limitations (see Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555 [2007]). Accordingly, since the appellant failed to meet his prima facie burden, it is unnecessary to consider the sufficiency of the evidence submitted in opposition to the motion (see Zamaniyan v Vrabeck, 41 AD3d 472 [2007]). Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ., concur.