WALLACE v. Horton Transportation, Inc., et al., appellants. (2009)

In a consolidated action to recover damages for personal injuries, the defendants Horton Transportation, Inc., Horton Transportation II, Inc., and Arif Gardashov appeal from an order of the Supreme Court, Kings County (Vaughan, J.), entered June 4, 2008, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Lorraine Wallace against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The appellants failed to meet their prima facie burden of showing that the plaintiff Lorraine Wallace 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 their motion, the appellants relied on, inter alia, the affirmed medical report of Dr. Wayne Kerness, their examining orthopedic surgeon.   In that report, Kerness noted significant limitations in the range of motion of Wallace's left shoulder (see Alvarez v. Dematas, 65 A.D.3d 598, 884 N.Y.S.2d 178;  Landman v. Sarcona, 63 A.D.3d 690, 880 N.Y.S.2d 168;  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).   While Kerness broadly opined that the all of his findings regarding Wallace were normal because Wallace suffered from pre-existing degenerative changes of, inter alia, the left shoulder, he failed to set forth any foundation for that conclusion (see Franchini v. Palmieri, 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282).

Since the appellants failed to meet their prima facie burden, it is unnecessary to consider the sufficiency of the evidence submitted in opposition to the motion (see Alvarez v. Dematas, 65 A.D.3d 598, 884 N.Y.S.2d 178;  Landman v. Sarcona, 63 A.D.3d 690, 880 N.Y.S.2d 168).