KONTOMICHALOS v. COUNTY OF NASSAU (2008)

In an action, inter alia, to recover damages for personal injuries, the defendants, County of Nassau, MTA-Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, and Gladstone A. Clarke, appeal (1) from an order of the Supreme Court, Nassau County (LaMarca, J.), entered May 4, 2005, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the plaintiff's cross motion, among other things, for summary judgment on the issue of serious injury and (2), as limited by their brief, from so much of an order of the same court dated January 3, 2006, as, upon, in effect, denying their motion, among other things, to quash three trial subpoenas, directed the defendant MTA-Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, to provide a complete copy of the employment file of the defendant Gladstone A. Clarke.

ORDERED that the appeal from so much of the order dated January 3, 2006, as directed the defendant MTA-Long Island Bus, a/k/a Metropolitan Suburban Bus Authority, to provide a complete copy of the employment file of the defendant Gladstone A. Clarke is dismissed, on the ground that that part of that order was superseded and rendered academic by an order of the same court entered February 5, 2007, made upon reargument;  and it is further,

ORDERED that the order entered May 4, 2005, is affirmed;  and it is further,

ORDERED that the order dated January 3, 2006, is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The Supreme Court correctly determined that the defendants did not satisfy their prima facie burden of showing that the 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In support of their motion, the defendants relied on the affirmed medical reports of their examining orthopedic surgeon and neurologist, which described significant limitations in the range of motion in the plaintiff's cervical and lumbar spines (see Jenkins v. Miled Hacking Corp., 43 A.D.3d 393, 841 N.Y.S.2d 317;  Bentivegna v. Stein, 42 A.D.3d 555, 841 N.Y.S.2d 316;  Zamaniyan v. Vrabeck, 41 A.D.3d 472, 835 N.Y.S.2d 903;  Brown v. Motor Veh. Acc. Indem. Corp., 33 A.D.3d 832, 822 N.Y.S.2d 784).   Under these circumstances, it is not necessary to consider whether the plaintiff's papers 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).

Moreover, on her cross motion the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of serious injury.   In opposition, the defendants failed to raise a triable issue of fact.   Therefore, the Supreme Court properly granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of serious injury.

The defendants' remaining contentions are without merit.