TCHJEVSKAIA v. CHASE (2005)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated October 30, 2003, which denied their 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 defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Meiheng Qu v. Doshna, 12 A.D.3d 578, 785 N.Y.S.2d 112;  Rodriguez v. J & K Taxi, 12 A.D.3d 434, 783 N.Y.S.2d 843).   The affirmation of the defendants' examining orthopedist discloses that the orthopedist actually recorded limitations in the plaintiff's ranges of motion despite his ultimate conclusion that the plaintiff did not sustain a serious injury.   Under these circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment.