AKHTAR v. SANTOS (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), dated August 24, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Mohammad S. Akhtar 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.

On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Matthews v. Cupie Transp., Corp., 302 A.D.2d 566, 567, 758 N.Y.S.2d 66).   In this case, the orthopedist who examined the injured plaintiff on behalf of the defendant found restrictions in the range of motion of the plaintiff's cervical and lumbar spines and left shoulder five years after the accident.   Accordingly, the defendant failed to meet her initial burden of establishing a prima facie case that the plaintiff had not sustained a serious injury.   Under these circumstances, “it is not necessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact” (Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  see Swaby v. Maldonado, 52 A.D.3d 692, 692-693, 858 N.Y.S.2d 898).