McDOWALL v. ABREU (2004)

In an action to recover damages for personal injuries, the defendant Dionicio Abreu appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated August 11, 2003, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and the defendant Angel Hernandez separately appeals, as limited by his brief, from so much of the same order as denied his separate motion for summary judgment dismissing the complaint insofar as asserted against him 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, with one bill of costs.

 Where a defendant fails to meet his or her initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury, “it is not necessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact” (Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  see Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604;  see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   The defendants' examining doctor found that the plaintiff continued to have restrictions in motion of her lower back approximately 1 1/212 years after the accident.   In light of this finding by the defendants' expert, the defendants did not meet their initial burdens on their separate motions (see Meyer v. Gallardo, 260 A.D.2d 556, 557, 688 N.Y.S.2d 624;  Cesar v. Felix, 181 A.D.2d 852, 853, 581 N.Y.S.2d 411).

Accordingly, the Supreme Court properly denied the defendants' separate motions for summary judgment dismissing the complaint.