Mercado v Mendoza

Mercado v Mendoza 2015 NY Slip Op 08717 Decided on November 25, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 25, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.
2014-01145
(Index No. 2001/12)

[*1]Rodney Mercado, appellant,

v

Lewis H. Mendoza, et al., respondents.

Subin Associates LLP, New York, N.Y. (Robert J. Eisen of counsel), for appellant.

Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Peter F. Breheny of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Gavrin, J.), dated October 7, 2013, as granted the defendants' cross 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) as a result of the subject accident.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' cross motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of demonstrating 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 955-956), as the defendants' expert found significant limitations in the range of motion in the lumbar region of the plaintiff's spine (see Miller v Bratsilova, 118 AD3d 761). The defendants' expert failed to adequately explain and substantiate his belief that the limitation of motion in the lumbar region of the plaintiff's spine was self-imposed (see India v O'Connor, 97 AD3d 796; cf. Perl v Meher, 18 NY2d 208, 219; Gonzales v Fiallo, 47 AD3d 760).

Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d 969).

BALKIN, J.P., CHAMBERS, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court