Rodriguez v Gorbunov

[*1] Rodriguez v Gorbunov 2009 NY Slip Op 51718(U) [24 Misc 3d 141(A)] Decided on July 29, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-253 Q C.

Lucy Rodriguez, Appellant,

against

Dmitry Gorbunov and LYUBOV GORBUNOV, Respondents. DMITRY GORBUNOV and LYUBOV GORBUNOV, Third-Party Plaintiffs, SANTOS RODRIGUEZ, ESQ., Third-Party Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered October 1, 2007, deemed from a judgment of the same court entered January 16, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 1, 2007 order granting defendants' motion for summary judgment to the extent of granting defendants partial summary judgment, dismissed the complaint insofar as it was premised upon the permanent consequential limitation of use and significant limitation of use categories of serious injury.

Judgment reversed without costs, so much of the order entered October 1, 2007 as granted defendants partial summary judgment vacated, and so much of defendants' motion as sought summary judgment dismissing the complaint insofar as it was premised on the permanent consequential limitation of use and significant limitation of use categories of serious injury denied.

Plaintiff commenced this action to recover for serious injuries allegedly sustained in a [*2]motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted the motion to the extent of granting defendants partial summary judgment dismissing the complaint with regard to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Plaintiff appeals from so much of the order as granted defendants partial summary judgment, which appeal is deemed to be from the judgment that was subsequently entered pursuant to the order (see CPLR 5501 [c]).

Defendants failed to meet their prima facie burden of showing that plaintiff did not sustain a serious injury with respect to the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In support of their motion, defendants relied upon, inter alia, the affirmed medical report of their examining neurologist. In her report, defendants' neurologist noted the existence of a 20-degree limitation in plaintiff's lumbar spine range of motion approximately five years after the accident (see Locke v Buksh, 58 AD3d 698 [2009]; Hurtte v Budget Roadside Care, 54 AD3d 362 [2008]). Defendants' neurologist failed to explain or substantiate with objective medical evidence the basis for her conclusion that the restriction in plaintiff's lumbar motion was "voluntary" (see Torres v Garcia, 59 AD3d 705 [2009]). Furthermore, the neurologist's opinion was not sufficiently qualified to establish that the observed limitation of motion was not significant (see Eybers v Silverman, 37 AD3d 403 [2007]). Since defendants failed to meet their prima facie burden, it is unnecessary to consider the sufficiency of plaintiff's opposition papers (see Guerrero v Bernstein, 57 AD3d 845 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

Accordingly, the judgment is reversed, so much of the order entered October 1, 2007 as granted defendants partial summary judgment is vacated, and so much of defendants' motion as sought summary judgment as to the permanent consequential limitation of use and significant limitation of use categories of serious injury is denied.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009