ALAM v. KARIM

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

Shah ALAM, respondent, v. Azharul KARIM, etc., et al., appellants.

Decided: April 28, 2009

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and ARIEL E. BELEN, JJ. Baker, McEvoy, Morrrissey & Moskovits, P.C., New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellants. Dalli & Marino, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen] of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Battaglia, J.), entered October 3, 2008, 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.   The Supreme Court erred in concluding that the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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, on the affirmed medical report of their examining orthopedic surgeon, David Hsu.   During his examination of the plaintiff on January 17, 2008, Dr. Hsu conceded the existence of significant limitations in the plaintiff's right shoulder and lumbar spine ranges of motion (see 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, 841 N.Y.S.2d 316;  Zamaniyan v. Vrabeck, 41 A.D.3d 472, 835 N.Y.S.2d 903).   In fact, he concluded in his report that the plaintiff still had ongoing positive indications that the plaintiff's injuries were unresolved more than a year and a half after the accident.   Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Bagot v. Singh, 59 A.D.3d 368, 871 N.Y.S.2d 917;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

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