PARADIZOV v. DOAN (2007)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated August 16, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

The defendants failed to make a prima facie showing that the plaintiffs 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).   The defendants did not provide any objective evidentiary basis for their expert orthopedist's opinion that each of the plaintiffs enjoyed a “full range of motion” and that the plaintiff Nikolai Paradizov experienced only “slight restrictions of motion of the back” which, in the expert's view, were “entirely ascribable” to a subsequent accident (Coburn v. Samuel, 44 A.D.3d 698, 843 N.Y.S.2d 659;  see Cedillo v. Rivera, 39 A.D.3d 453, 835 N.Y.S.2d 238).   Therefore, the defendants' motion for summary judgment dismissing the complaint should have been denied (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400), regardless of the sufficiency of the plaintiffs' opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).