LANDMAN v. SARCONA (2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated April 1, 2008, which granted the defendant's 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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The defendant failed to meet her prima facie burden of showing that the plaintiff 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 her motion, the defendant relied, inter alia, upon the affirmed medical reports of Dr. Mathew Chacko and Dr. Vartkes Khachadurian.   Dr. Chacko, the defendant's examining neurologist, noted significant limitations in the plaintiff's cervical and lumbar spine ranges of motion when he examined her on May 2, 2007, some 2 1/212 years after the accident (see Bagot v. Singh, 59 A.D.3d 368, 871 N.Y.S.2d 917;  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).   Moreover, the medical report of Dr. Khachadurian, the defendant's examining orthopedic surgeon, noted a significant limitation in the plaintiff's cervical spine range of motion when he examined her on March 21, 2007.   Dr. Khachadurian opined that such limitation was due to the plaintiff's age and evidence of degenerative disease in her cervical spine.   However, such opinion was conclusory (see Powell v. Prego, 59 A.D.3d 417, 872 N.Y.S.2d 207).

Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the plaintiff's opposition (see Bagot v. Singh, 59 A.D.3d 368, 871 N.Y.S.2d 917;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).