Fritz Rocourt, appellant, v. Melmartis Alvelo, et al., respondents.

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

Fritz Rocourt, appellant, v. Melmartis Alvelo, et al., respondents.

2009-09645 (Index No. 34327/06)

Decided: December 28, 2010

PETER B. SKELOS, J.P. DANIEL D. ANGIOLILLO L. PRISCILLA HALL SHERI S. ROMAN, JJ. Harmon, Linder, & Rogowsky (Mitchell Dranow, Mineola, N.Y. of counsel), for appellant. White Fleischner & Fino, LLP, New York, N.Y. (Jennifer L. Coviello of counsel), for respondent Melmartis Alvelo. Morris Duffy Alfonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for respondents Rajiu R. Latchman and Candice Jarome-Davis. James G. Bilello & Associates, Westbury, N.Y. (Patricia McDonagh of counsel), for respondents Junior A. Williams and Karen M. Rose.

Submitted-December 15, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated September 1, 2009, which granted the separate motions of the the defendant Melmartis Alvelo, the defendants Rajiu R. Latchman and Candice Jarome-Davis, and the defendants Junior A. Williams and Karen M. Rose for summary judgment dismissing the complaint insofar as asserted against each of those defendants on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs to the plaintiff, payable by the defendants appearing separately and filing separate briefs, and the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

Contrary to the Supreme Court's determination, the defendants failed to meet their respective prima facie burdens 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 respective motions, the defendants relied on, among other things, the affirmed medical report of Dr. Alan J. Zimmerman, an orthopedic surgeon, dated October 22, 2008, who opined that the plaintiff had significant limitations in his lumbar spine range of motion resulting from the subject accident (see Mondevil v. Kumar, 74 AD3d 1295;  Smith v. Hartman, 73 AD3d 736;  Quiceno v. Mendoza, 72 AD3d 669;  Giacomaro v. Wilson, 58 AD3d 802).

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

SKELOS, J.P., ANGIOLILLO, HALL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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