AVRASHKOVA v. PAUL (2007)

In an action to recover damages for personal injuries, the defendant Tricia L. Paul appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated January 31, 2007, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her 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.

On her motion for summary judgment dismissing the complaint insofar as asserted against her, the defendant Tricia L. Paul (hereinafter the appellant), failed to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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 appellant relied on various medical reports which showed significant limitations in the plaintiff's spine (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). Furthermore, the report of the appellant's examining orthopedist noted range of motion findings concerning the cervical and lumbar regions of the plaintiff's spine, and the plaintiff's left knee, without comparing those findings to what is deemed normal (see Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396;  McNulty v. Buglino, 40 A.D.3d 591, 836 N.Y.S.2d 198;  Osgood v. Martes, 39 A.D.3d 516, 831 N.Y.S.2d 724;  McLaughlin v. Rizzo, 38 A.D.3d 856, 832 N.Y.S.2d 666;  Bluth v. WorldOmni Fin. Corp., 38 A.D.3d 817, 832 N.Y.S.2d 640;  Harman v. Busch, 37 A.D.3d 537, 829 N.Y.S.2d 680).

Since the appellant failed to establish her prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the plaintiff's papers submitted in opposition to the 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).