COLON v. CHUEN SUM CHU (2009)

In an action to recover damages for personal injuries, the defendant Chuen Sum Chu appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated April 14, 2008, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Francisco Colon against him on the ground that the plaintiff Francisco Colon did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Chuen Sum Chu (hereinafter the appellant) failed to meet his prima facie burden of showing, on his motion for summary judgment, that the plaintiff Francisco Colon 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, he relied on the affirmed medical report of Barry M. Katzman, an orthopedic surgeon, who examined Francisco more than 5 1/212 years after the subject accident.   During that examination, Dr. Katzman noted significant limitations in Francisco's lumbar spine range of motion (see Powell v. Prego, 59 A.D.3d 417, 872 N.Y.S.2d 207;  Locke v. Buksh, 58 A.D.3d 698, 872 N.Y.S.2d 148;  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, 556, 841 N.Y.S.2d 316;  Zamaniyan v. Vrabeck, 41 A.D.3d 472, 835 N.Y.S.2d 903).   His explanation that said limitations were “voluntary” was insufficient by itself to remedy those findings (see Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366).

Since the appellant failed to establish his prima facie entitlement to judgment as a matter of law as against Francisco, it is unnecessary to reach the question of whether the papers submitted in opposition were sufficient to raise a triable issue of fact (see Powell v. Prego, 59 A.D.3d 417, 872 N.Y.S.2d 207;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).