Josette Iannello, et al., respondents, v. Marcelina Vazquez, appellant, et al., defendants.

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Supreme Court, Appellate Division, Second Department, New York.

Josette Iannello, et al., respondents, v. Marcelina Vazquez, appellant, et al., defendants.

2010-02061 (Index No. 21096/07)

-- November 30, 2010

PETER B. SKELOS, J.P. FRED T. SANTUCCI DANIEL D. ANGIOLILLO L. PRISCILLA HALL SHERI S. ROMAN, JJ. Kaplan, Hanson, McCarthy, East Elmhurst, N.Y. (Edward B. Suh of counsel), for appellant. Borrell & Riso, LLP, Staten Island, N.Y. (John Riso of counsel), for respondents.

Submitted-November 17, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Marcelina Vazquez appeals from so much of an order of the Supreme Court, Kings County (Schmidt.J.), dated November 2, 2009, as denied her motion for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff Josette Iannello 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 appellant failed to meet her prima facie burden of showing that the plaintiff Josette Iannello did 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., 98 N.Y.2d 345;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).   In support of her motion, the appellant relied upon, inter alia, the affirmed medical reports of Dr. Edward Toriello and Dr. Richard Lechtenberg.   When both doctors examined the injured plaintiff, in June and July 2008, respectively, they noted significant limitations in her lumbar spine range of motion (see Ortiz v. Orlov, 76 AD3d 1000;  Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989;  Smith v. Hartman, 73 AD3d 736;  Leopold v. New York City Tr. Auth., 72 AD3d 906).   While Dr. Toriello and Dr. Lechtenberg intimated that the limitations noted were subjective in nature, they failed to explain or substantiate, with any objective medical evidence, the basis for their conclusions that the noted limitations were self-imposed (see Bengaly v. Singh, 68 AD3d 1030).

Since the appellant failed to meet her prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue of fact (see Ortiz v. Orlov, 76 AD3d 1000;  Bengaly v. Singh, 68 AD3d at 1030;  Coscia v. 938 Trading Corp., 283 A.D.2d 538).

SKELOS, J.P., SANTUCCI, ANGIOLILLO, HALL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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