MONDERT v. IGLESIA DE DIOS PENTECOSTAL CRISTO VIENE INC (2010)

In an action to recover damages for personal injuries, the defendant Iglesia De Dios Pentecostal Cristo Viene, Inc., appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated January 24, 2008, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it 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 appellant failed to meet its 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 its motion, the appellant relied on, inter alia, the affirmed medical report of its examining neurologist.   In that report, he noted that the plaintiff had a significant limitation in her lumbar spine range of motion, and concluded that the decreased range of motion was “voluntary.”   However, he failed to explain or substantiate, with objective medical evidence, the basis for his conclusion that the limitation was voluntary (see Hi Ock Park-Lee v. Voleriaperia, 67 A.D.3d 734, 734, 888 N.Y.S.2d 215;  Cuevas v. Compote Cab Corp., 61 A.D.3d 812, 878 N.Y.S.2d 124;  Colon v. Chuen Sum Chu, 61 A.D.3d 805, 878 N.Y.S.2d 127;  Torres v. Garcia, 59 A.D.3d 705, 874 N.Y.S.2d 527;   Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366).

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to determine whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Hi Ock Park-Lee v. Voleriaperia, 67 A.D.3d 734, 888 N.Y.S.2d 215;  Cuevas v. Compote Cab Corp., 61 A.D.3d 812, 878 N.Y.S.2d 124).