Manuel Torres, respondent, v. Anna Marie Torrano, appellant.

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

Manuel Torres, respondent, v. Anna Marie Torrano, appellant.

2010-07898 (Index No. 11937/08)

Decided: December 28, 2010

REINALDO E. RIVERA, J.P. JOSEPH COVELLO RANDALL T. ENG JOHN M. LEVENTHAL LEONARD B. AUSTIN, JJ. Nesci-Keane, PLLC, Hawthorne, N.Y. (Jason M. Bernheimer of counsel), for appellant. Sobo & Sobo, LLP, Middletown, N.Y. (Suzan D. Paras and Gregory M. Sobo of counsel), for respondent.

Submitted-December 15, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Orange County (Bartlett, J.), entered July 21, 2010, which denied her 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 Supreme Court properly determined that the defendant failed to meet her 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 her motion, the defendant relied upon, inter alia, the affirmed medical report of a neurologist who examined the plaintiff nearly three years after the accident, and noted significant range-of-motion limitations in the cervical region of the plaintiff's spine.   In view of the neurologist's findings, the defendant failed to establish her prima facie entitlement to judgment as a matter of law (see Mondevil v. Kumar, 74 AD3d 1295, 1296;  Smith v. Hartman, 73 AD3d 736;  Quiceno v. Mendoza, 72 AD3d 669;  Giacomaro v. Wilson, 58 AD3d 802, 803;  McGregor v. Avellaneda, 50 AD3d 749, 750;  Wright v. AAA Constr.   Servs., Inc., 49 AD3d 531, 532).

Since the defendant failed to meet her prima facie burden, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendant's 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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