Nubia Tavaras, respondent, v. Herkimer Taxi Corp., et al., appellants.

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

Nubia Tavaras, respondent, v. Herkimer Taxi Corp., et al., appellants.

2010-05974 (Index No. 11083/08)

Decided: November 30, 2010

REINALDO E. RIVERA, J.P. JOSEPH COVELLO RANDALL T. ENG JOHN M. LEVENTHAL LEONARD B. AUSTIN, JJ. Stacy R. Seldin, New York, N.Y., for appellants. Pontisakos & Rossi, P.C., Roslyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.

Submitted-November 17, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kelly, J.), dated April 22, 2010, 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.

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;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).   In support of their motion, the defendants relied on the affirmed medical report of Dr. Ashok Anant, their examining neurologist.   During his examination of the plaintiff on February 27, 2009, Dr. Anant noted significant limitations in the range of motion of the plaintiff's lumbar spine (see Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989;  Mondevil v. Kumar, 74 AD3d 1295;  Smith v. Hartman, 73 AD3d 736;  Quiceno v. Mendoza, 72 AD3d 669;  Giacomaro v. Wilson, 58 AD3d 802;  McGregor v. Avellaneda, 50 AD3d 749;  Wright v. AAA Constr.   Servs., Inc., 49 AD3d 531).   While Dr. Anant stated that the plaintiff presented with “magnification of symptoms,” and that the decreased ranges of motion noted by him in the lumbar region of the spine was “subjective,” he failed to explain or substantiate those conclusions with any objective medical evidence (see Reitz v. Seagate Trucking, Inc., 71 AD3d 975;  Bengaly v. Singh, 68 AD3d 1030;  Ortiz v. S & A Taxi Corp., 68 AD3d 734).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Coscia v. 938 Trading Corp., 283 A.D.2d 538).

RIVERA, J.P., COVELLO, ENG, LEVENTHAL and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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