SCOTTI v. BOUTUREIRA

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Supreme Court, Appellate Division, Second Department, New York.

Vincent A. SCOTTI, et al., appellants, v. Janime Hedr BOUTUREIRA, et al., respondents.

Decided: June 28, 2004

FRED T. SANTUCCI, J.P., HOWARD MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Nigro, D'Anna & Utrecht, P.C. (Todd A. Restivo, Garden City, N.Y., of counsel), for appellants. MacKay, Wrynn & Brady, LLP, Douglaston, N.Y. (James J. Wrynn of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Satterfield, J.), dated July 18, 2003, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Vincent Scotti did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendants failed to make a prima facie showing that the plaintiff Vincent Scotti did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The conclusions of the defendants' examining physicians that Scotti had recovered from his injuries and was not disabled were directly contradicted by the observations of limitations that they had made when examining Scotti. Since the defendants failed to establish a prima facie case, it is unnecessary to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

Accordingly, the Supreme Court erred in granting the defendants' motion for summary judgment dismissing the complaint.

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