DELACRUZ v. OSTRICH CAB CORP (2009)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated March 5, 2009, 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, without costs or disbursements.

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) 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).   During his examination of the plaintiff, the defendants' orthopedic surgeon found restrictions in the range of motion of the plaintiff's lumbar spine, which he described as “self-restricted.”   However, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the limitations that were noted were self-restricted (see 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).   Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment without considering the sufficiency of the plaintiff's opposition papers (see Cuevas v. Compote Cab Corp., 61 A.D.3d 812, 878 N.Y.S.2d 124;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).