Davis v D.L. Peterson Trust

Davis v D.L. Peterson Trust 2016 NY Slip Op 03135 Decided on April 27, 2016 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 April 27, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
SYLVIA O. HINDS-RADIX, JJ.
2015-04756
(Index No. 701366/12)

[*1]Dudley Davis, appellant,

v

D. L. Peterson Trust, defendant, Janice A. Dayson, et al., respondents.

Levine and Wiss, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, NY (Larry H. Lum of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated May 15, 2015, which granted the motion of the defendants Janice A. Dayson and Abbott Laboratories for summary judgment dismissing the complaint insofar as asserted against them 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, on the law, with costs, and the motion of the defendants Janice A. Dayson and Abbott Laboratories for summary judgment dismissing the complaint insofar as asserted against them is denied.

The defendants Janice A. Dyson and Abbott Laboratories (hereinafter together the moving 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957), as one of their experts found significant limitations in the range of motion of the lumbar region of the plaintiff's spine, and did not offer an opinion as to the cause of those limitations (see Mercado v Mendoza, 133 AD3d 833, 834; Miller v Bratsilova, 118 AD3d 761).

Since the moving 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).

Accordingly, the Supreme Court should have denied the moving defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

RIVERA, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court