MULLEN v. LAUFFER (2006)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Orange County (Horowitz, J.), dated September 12, 2005, which denied her 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).

ORDERED that the order is affirmed, with costs.

The defendant failed to make a prima facie 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).   The defendant's examining neurologist found that the plaintiff continued to have restrictions in motion of her cervical spine approximately two years after the accident.   In light of this finding by the defendant's expert, the defendant did not meet her initial burden on her motion (see Kaminsky v. Waldner, 19 A.D.3d 370, 796 N.Y.S.2d 175;  Omar v. Bello, 13 A.D.3d 430, 786 N.Y.S.2d 563;  McDowall v. Abreu, 11 A.D.3d 590, 782 N.Y.S.2d 866;  Scotti v. Boutureira, 8 A.D.3d 652, 779 N.Y.S.2d 255).   Since the defendant failed to establish a prima facie case, it is unnecessary to consider whether the plaintiff's opposition papers 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).