TORRES v. Kamnaki Service, Inc., et al., Defendants-Respondents. (2009)

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 1, 2008, which granted the motion of Kamnaki Service, Inc. and Sidi Sall for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff does not dispute the motion court's finding that defendants are not liable for the car accident in which she alleges she sustained a serious injury within the meaning of Insurance Law § 5102(d), and she tacitly concedes that she is unable to proceed against any other defendant because none are liable except the driver of a stolen car, who was never served in this action.   We therefore affirm the grant of summary judgment dismissing the complaint on the ground that defendants' nonliability was conclusively established.

 However, because the court's finding as a matter of law that plaintiff did not sustain a serious injury will have collateral estoppel effect on her uninsured motorist claim, the serious injury issue is not moot, and we therefore address it (see Urbina v. 26 Ct. St. Assoc., LLC, 12 A.D.3d 225, 784 N.Y.S.2d 524 [2004];  Tehan v. Peters Print. Co., 71 A.D.2d 101, 104, 421 N.Y.S.2d 465 [1979] ).   We find that defendants failed to demonstrate their entitlement to summary judgment dismissing the complaint on that ground.

Both defendants' neurology and orthopedics experts reported significant limitations of range of motion in plaintiff's cervical and lumbar spine (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ), and neither identified a potential cause of the injury other than the accident (see Diaz v. Anasco, 38 A.D.3d 295, 831 N.Y.S.2d 398 [2007] ).   Rather, the experts opined that plaintiff's limited range of motion was the result of lack of effort on her part.   However, this opinion was unsupported by objective medical proof, and therefore it is insufficient to establish a prima facie case (see Lamb v. Rajinder, 51 A.D.3d 430, 859 N.Y.S.2d 4 [2008];  Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366 [2008] ).