LOCKE v. BUKSH (2009)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Balter, J.), dated December 5, 2007, 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 Supreme Court properly determined that the defendants failed to meet their prima facie burden of showing 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, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In support of their motion, the defendants relied upon, inter alia, the affirmed medical report of their examining orthopedic surgeon.   In his report he noted the existence of significant limitations in the plaintiff's lumbar spine range of motion (see 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, 841 N.Y.S.2d 316;   Zamaniyan v. Vrabeck, 41 A.D.3d 472, 835 N.Y.S.2d 903).   Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Hurtte v. Budget Roadside Care, 54 A.D.3d 362, 861 N.Y.S.2d 949;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).