ROBINSON v. YEAGER (2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated April 14, 2008, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendant failed to meet his 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, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In support of his motion, the defendant relied upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell and Dr. Rene Elkin.   In those reports, Dr. Elkin noted significant limitation in the plaintiff's cervical spine, and Dr. Purcell noted significant limitation in the plaintiff's right shoulder (see Giacomaro v. Wilson, 58 A.D.3d 802, 872 N.Y.S.2d 180;  Hurtte v. Budget Roadside Care, 54 A.D.3d 362, 861 N.Y.S.2d 949;  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).   Since the defendant failed to meet his prima facie burden, it is unnecessary to decide whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Giacomaro v. Wilson, 58 A.D.3d 802, 872 N.Y.S.2d 180;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).