Jordan Fields, respondent, v. Jose Hildago, et al., appellants, et al., defendants. (2010)

Submitted-May 19, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Jose Hildago and Calvery Center Church appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered September 29, 2009, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 appellants 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;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).   In support of their motion, the appellants relied on, inter alia, the affirmed medical report of Dr. Martin Barschi, their examining orthopedic surgeon.   Dr. Barchi noted significant limitations in the cervical and lumbar regions of the plaintiff's spine during active range-of-motion testing when he examined the plaintiff more than a year post-accident.

Since the appellants failed to meet their prima facie burden, we need not address the question of whether the plaintiff's submissions raised a triable issue of fact (see Smith v. Hartman, AD3d, 2010 N.Y. Slip Op 03899, *1[2d Dept 2010];  Quiceno v. Mendoza, 72 AD3d 669;  Kjono v. Fenning, 69 AD3d 581, 582;  Coscia v. 938 Trading Corp., 283 A.D.2d 538).

SKELOS, J.P., MILLER, ENG, HALL and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court