ORTIZ v. TAXI CORP (2009)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), entered April 2, 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, with costs.

While we affirm the order appealed from, we do so on a ground other than that relied upon by the Supreme Court.   Contrary to the defendants' contention on appeal, they 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).   In support of their motion, the defendants relied, inter alia, upon the affirmed medical report of their examining orthopedic surgeon, in which he noted the existence of a significant limitation in the range of motion, i.e., flexing, of the plaintiff's lumbar spine (see Buono v. Sarnes, 66 A.D.3d 809, 888 N.Y.S.2d 79;  Held v. Heideman, 63 A.D.3d 1105, 883 N.Y.S.2d 246).   While he opined that this limitation was “subjective,” he failed to explain or substantiate his basis for that conclusion.

Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Buono v. Sarnes, 66 A.D.3d 809, 888 N.Y.S.2d 79;  Held v. Heideman, 63 A.D.3d 1105, 883 N.Y.S.2d 246;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).   Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.