CABRERA v. MOMPEROUSSE (2008)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated May 7, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Tomas Cabrera did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.   In support of their motion, the defendants submitted evidence that the plaintiff Tomas Cabrera (hereinafter the injured plaintiff) had significant restrictions in motion of the lumbar and cervical regions of his spine (see Bentivegna v. Stein, 42 A.D.3d 555, 556, 841 N.Y.S.2d 316;  see also McDowall v. Abreu, 11 A.D.3d 590, 591, 782 N.Y.S.2d 866;  Meyer v. Gallardo, 260 A.D.2d 556, 556-557, 688 N.Y.S.2d 624).   Accordingly, the defendants failed to establish, prima facie, that the injured plaintiff 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, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Under these circumstances, it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).