BROWN v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (2006)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated August 5, 2005, which denied its motion for summary judgment dismissing the first cause of action on behalf of the plaintiff Tiffany Brown, as well as the derivative cause of action on behalf of the plaintiff Vanessa Brown with respect to Tiffany Brown, on the ground that the plaintiff Tiffany Brown did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

In support of its motion for summary judgment dismissing the first cause of action on behalf of the infant plaintiff Tiffany Brown, as well as the derivative cause of action of the plaintiff Vanessa Brown with respect to Tiffany Brown, the defendant relied upon the medical records and reports concerning Tiffany Brown prepared by her treating physicians.   Those reports and records failed to establish, as a matter of law, that Tiffany Brown did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  Indeed, one of those reports noted the existence of limitations in the range of motion of Tiffany Brown's knees without sufficient quantification or qualification to establish that the limitation of motion was not significant.   Since the defendant's assertions were thus belied by the documentary evidence submitted in support of the motion, the Supreme Court correctly denied the motion (see Smith v. Delcore, 29 A.D.3d 890, 814 N.Y.S.2d 554;  Sano v. Gorelik, 24 A.D.3d 747, 805 N.Y.S.2d 854;  Kaminsky v. Waldner, 19 A.D.3d 370, 796 N.Y.S.2d 175;  Spuhler v. Khan, 14 A.D.3d 693, 789 N.Y.S.2d 228;  Omar v. Bello, 13 A.D.3d 430, 786 N.Y.S.2d 563;  Scotti v. Boutureira, 8 A.D.3d 652, 779 N.Y.S.2d 255;  see also 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Willis v. New York City Tr. Auth., 14 A.D.3d 696, 789 N.Y.S.2d 223).   Since the defendant failed to meet its prima facie burden, we need not consider the sufficiency of the papers submitted in opposition to the motion (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).