HELD v. HEIDEMAN

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

Barbara HELD, appellant, v. Richard HEIDEMAN, et al., respondents.

Decided: June 30, 2009

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ. Robert K. Young, Bellmore, N.Y. (Gary J. Young of counsel), for appellant. Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated August 20, 2008, which granted the defendants' 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), and denied, as academic, her cross motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the defendants' motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the plaintiff's cross motion on the merits.

The defendants 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 of the plaintiff's lumbar spine (see Torres v. Garcia, 59 A.D.3d 705, 874 N.Y.S.2d 527;  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;  Jenkins v. Miled Hacking Corp., 43 A.D.3d 393, 841 N.Y.S.2d 317;  Bentivegna v. Stein, 42 A.D.3d 555, 556, 841 N.Y.S.2d 316;  Zamaniyan v. Vrabeck, 41 A.D.3d 472, 473, 835 N.Y.S.2d 903).   Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Torres v. Garcia, 59 A.D.3d 705, 874 N.Y.S.2d 527;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

In light of our determination that the defendants' motion for summary judgment should have been denied, we remit the matter to the Supreme Court, Nassau County, for a determination of the plaintiff's cross motion on the merits (see e.g. Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366).

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