SANTOS v. NEW YORK CITY TRANSIT AUTHORITY

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Doris SANTOS, et al., Plaintiffs–Appellants, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Respondents.

Decided: October 16, 2012

GONZALEZ, P.J., SWEENY, ACOSTA, RENWICK, MANZANET–DANIELS, JJ. Sim & Records, LLP, Bayside (Sang J. Sim of counsel), for appellants. Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 21, 2011, which granted defendants' motion for summary judgment dismissing the complaint alleging serious injuries under Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. Their orthopedist's unexplained findings of significant limitations in the cervical and lumbar spine (see Yamamoto v. Carled Cab Corp., 66 A.D.3d 603, 888 N.Y.S.2d 29 [1st Dept. 2009] ) conflict with their findings of an absence of serious injury to the spine (Feaster v. Boulabat, 77 A.D.3d 440, 440–441, 908 N.Y.S.2d 677 [1st Dept. 2010] ). Defendants also failed to submit objective evidence of the absence of any spinal injuries or abnormalities. Nor did they submit any expert opinion that plaintiff's alleged injuries were not caused by the accident. Because defendants failed to meet their burden, their motion must be denied, regardless of the sufficiency of the opposing papers (see Escotto v. Vallejo, 95 A.D.3d 667, 668, 944 N.Y.S.2d 550 [1st Dept. 2012] ).