Santos v Grunner
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Santos v Grunner 2012 NY Slip Op 32786(U) November 7, 2012 Supreme Court, Suffolk County Docket Number: 09-36592 Judge: Denise F. Molia Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SIIORT FORM OROI.:R COPY INDEX No. CAL. No 09-36592 J2-00513MV SUPREME COURT - STATE OF NEW YORK IAS. PART 39 - SUFFOLK COUNTY PRESENT: ([on. DENISE F. MOLIA Justice of the Supreme Court MOTION DATE 6-12- I2 AD.!. DATE 9-28-12 Mot. Seq. # 002 - MD ---------------------------------------------------------------X JOSE SANTOS. MARTA BENITEZ CARMEN SARA VIA, and Plaintiffs, STEVEN D. DOLLINGER & ASSOCIATES Attorney for Plaintiffs 5 Threepence Drive Melville, New York 11747 BRUNO, GERBINO & SORIANO, LLI' Attorney for Defendant 445 Broad Hollow Road, Suite 220 Melville, New York 11747 - againstLOMA C. GRUNNER, Defendant. ---------------------------------------------------------------X Upon the following papers numbered I to 39 read on this motion lor summary judgment; Notice of Motion! Order to Show Cause and supporting papers (002) I - 27; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers 28-29 (untabbed); Replying Affidavits and supporting papers 30-31; 32-39 , Other _; (dlid aftcl ilealing eMn~e1 ill sUpp<"ill oppo~ed to the "'lid tT!"OtTcm) itis, ORDERED that this motion (002) by the defendant, Loma C. Grunner, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that the plaintiffs, Jose Santos, Marta Benitez, and Carmen Saravia, failed to sustain serious injuries as defined by rnsurance Law § 5102 (d), is denied. Plaintiffs seek to recover damages for personal injuries allegedly sustained in a motor vehicle accident which occurred on Route 1 10. at or near the intersection with Pinelawn Road, in Huntington, Nevv· York, when the vehicle being operated by plaintiff, Josc Santos. was slruck in the rear by a vehicle operated by defendant Loma C. Grunner. Marta BeniteL and Carmen Saravia, were passengers in the Santos vehicle at the time of the accident. Summary judgment ,"vas previously granted to plaintiff" on the counterclaim, Jose Santos, against defendant Grunner on the issue of liability, by order dated November 16,20 I] (Molia, .I.), and the counterclaim and all cross claims asserted against Santos were dismissed. The defendant now seeks summary judgment on the basis that Jose Santos, Marta Benitez, and Carmen Saravia did not sustain senous injuries as defined by Insurance Law §51 02 (d). The plaintiffs oppose the defendant's application. Pursuant to Insurance Law § SI02(d), '- 'fsJerious injury' means a personal injury which results in death; dismemberment slgni ficant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ. member, function or system; permanent consequential limltation of use ofa body organ or member; signif"icant limitation of use of a body function or system; or a medical determined injury or impairment of a non-permanent [* 2] Santos v Grullncr Index No. 09-36592 Page No.2 nature which prevcnts thc injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately fi.lllowing the occurn:nce of the injury or impairment." The term "significant:' as it appcars in the statutc, has been de lined as "something more than a minor [imitation of use:' and the term "substantially air' has been construed to mean ..that the person has been curtailed from performing his usual activities to a grcat extent rather than some slight curtailment (Licari l' Elliot. 57 N Y2d 131l. 455 NYS2d 570 [1982]). On a motion for summary judgment to dismiss a complaint for f~lilure to set lorth a prima facie casc or :-;crious Injury as dciincd by fnSUI'[lllCC Law ~ 5102(d), the initial burden is on the defendanl to "present evidence in competcnt form. showing thai plaintilThas no cnuse o!'action" (Rodrhluez I' Goldsteiu, lB2 AD2d 396, 582 NYS2d 395, 396 [1st Dept [9921). Once the defendant has met the burden, the p[aintirrmust then, by competent prool~ establish a prinwfacie case that such serious injury exists (DeAngelo l' Fidel Corp. Services, IIlC" 171 AD2d 588, 567 NYS2d 454, 455 15t Dept 1991]). Such proof: in order to be in competent or admlssible form, shall consist of affidavits or affirmations (Pagmw v Kingsbury, 182 AD2d 268, 587 NYS2d 692 [2d Depl 1992 D. The proof must be viev,'ed in a light most favorable to the non-moving party, here the plaintilT(Cammarere I' Villallo"a. 166 AD2d 761l. 562 NYS2d 808, 810 [3d Dep! 1990]). r In order to recover under the "permanent loss or use" category, a plaintiff must demonstrate a lota[ loss of use ora body organ, member, function or syslem (Oberly l' BangsAmbulance IIIC., 96 NY2d 295, 727 NYS2d 378 [2001]). To prove lhe extent or degree of physical limitation with respect to the "permanenl consequential [imitation of usc of a body organ or member" or "significant limitation of use of a body function or systcm" categories, either a specific percentage orthe loss of range of motion must be ascribed or there must be a SUITiCiCIH description of the "qualitative nature" of plaintiffs limitations, with an objective basis. correlating plaintiffs limitations to the normal function, purpose and use of the body part (Toure v Avis Rem A Car Systems, IIlC" 98 NY2d 345. 746 NYS2d 865 [2000]). A minor, mild or slight limitalion or use is considered insignificant within the meaning or tile statute (Licari I' Elliott, supra). Flased upon a revie'vv orthe foregoing evidentiary submissions. it is determined that the detendant failed to establish prima tileie entitlement to summary Judgment on the Issue of whether each plainti rf sustained a scrious injury as dctined by Insurance Law ~ 5102 (d). The dctcndant's experts have not provided copies of their respective curriculum vllae and have 110tset forth the bases in their respective reports to each qualify as an expert 10 give testimony in this matter. The dcli.:ndant has railed to provide with the moving papers, the copies orihe medical records which her experts reviewed and upon which thcy base their opinions. in part. including thc MRI reports of each of the plaintifTs' MR.I studies. x-ray reports. and hospital records. as required pursuant to CPLR 32 [1. E:-.:.perttestimony is limited 10 facts in evidence (SI:'t'. AI/ell \' Vlt, 811\D3d 1015.919 NYS2d 179 pd Depl201 [I: Marzltil/o I' Isom, 277 AD2d 362. 716 NYS2d 98 [ld Dcpt :WOO [: Strillgile v Rotltman. 142 i\D2d 637. 530 NYS1d 838 r2d Oept 1988[: O'Shea I'Sarro. 106 I\D2d 435. 482 NYS2d 519 !1d Dept 1984]. Hornbrook I' Peak Resorts, Inc. 194 Misc2d 273. 754 NYS2d 132 [Sup C1. Tomkins County 20021). which evidence has not heen provided in this case. While the defendant atlempted to correct thesc deficiencies in the moving papers by providing somc of plaintiffs' MRI reports in the reply papers. factual issues concerning those reports srill preclude summary .judgmcnt from heing grankcl to lhe defendant. [* 3] Santos v Grunner Index No. 09-36592 Pag~ No.3 .lOSE SANTOS 8y way orllis verified bill of particulars. Jose Santos alleges that as a result of this accident he has suswined injury consisting or loss of enjoyment of life and the prior actiYities which hc cnjoyed; 2.) x 1.6 x 1.8 collection located to the lell oCthe 1.2 spinous process consistent with hemorrhage from llluscle tear of the paraspinal muscles: right shouldcr curved acromion process causing a moderate degree of subacrominal impingemelll upon the musculotendinous junction of the supraspinatus; subcortical cystic changes in the greater tuberosity by the insertion of the infraspmatus tendon:. signal abnormality in the distal supraspinatus tendon consistent with a partial tear and tendinitis without retraction; arthroscopic surgery, shaving and debridement of torn glenoid labrum and subacromial decompression: post concussion syndrome; headaches: jaw pain; radiculitis of the entire spine: and aggravation of prior injuries. Michael J. Katz. M.D. has set forth that he examined Jose Santos, a 47 year old male, in an independent orthopedic examination relating to injuries Santos alleges occurred to his neck, back and right shoulder in this accident. Dr. Katz has set forth his range or motion findings. measured wilh a goniometer upon examination of Sanlos' cervical and lumbar spine, right shoulder, and upper and lower extremities, and set forth no deficits on comparing those findings \.virh the normal range of motion yalues. Dr. Katz stated that Santos was status post successful arthroscopy ol'the right shoulder. He stated that he reviewed the intra-operative photographs which, he stated. revealed degenerative changes in the labrum of the right shoulder, which changes ordinarily do not require surgery. Hc continued that the changes noted in the MRI report of June 3. 2007 are pre-existing developmental anatomic changes, as wcll as degenerative. but are not acute traumatic changes. However, Dr. Katz does not set forth lhe basis for this conc!usory opinion which is unsupported by evidentiary proof. Additionally. Dr. Katz does not address the findings set forth in the operative report with regard to the impingement syndrome and the subacromial decompression. leaving the court to speculate as to the cause: or such conditions and their relation to the subject accidcnt. lIe docs not state that such conditions do not require surgical intervention, raising further factual issuc. Such factual issues preclude summary judgement. Dr. Katz's additional arllrmation adds nothing further to his initial reporl. Although .Iose Santos alleges to have sustained radiculitis relating to his spine, and Dr Katz diagnoscd that Santos has resolvcd cervical strain with radiculitis, and resolved lumbar strain \vith radiculitIS, 110report ham an cxamining neurologist has been submitted by the dctendant, thus further precluding summary judgment (Browdame 11 emu/lira. 25 AD3d 747, 807 NYS2d 658 [2d Dept 2006']; Rodriguez IIS'chickler, 229 AD2d 326, MS NYS2d 31 list Dcpt 19(61). Notably. Dr. K"tL does not set j()rth the basis for his opinion that such radiculitis IS resolved Jcffrey WarhiL M.D .. ddi:ndant·s radiology expert. has sct j(lrlh that he rcvicweu the MRI's ofthc .Jose Santos· lumbosacral spine dated May 30. 2007. and right shoulder dated June 3. 2007. and set forth his lltluings. ! lowevcr. he did not set fOrlh the findings in the MRI report issued by plaintifrs examining physician. leaving it to this court to speculate as 10 the IIndings therein. In his rcp0!1 concerning his radiologic reviewal' Jose Sanlos· MRI of the lumoosacral spine of May 30. 2007. Dr. Warhit did llnd that Ihe plaintifThad a small central disc hernintion ,H the 1.5-5 I level. with mild mass effect on the anterior aspcct orthe dural sac. as well as moderate tlnrrowing of the neural foramin<l. J lis Impression. however. is thai the study is negative for evidence for a traumatic injury to the lumhosacral spinc and is also negative for evidence of frncture. disc herniation or disc hulgillg. thus eontrndictillg his finding ora small central disc herniation at the 1.5-5 I leveL lie also lloled a 2cm cyslic-appcaring mass in the paraspillalmuscles posteriorly at the level of 1.2. which he stated docs 110tappear traumatic in etiology and stated that possibilities for ils presence include n ganglion cyst. Dr. Warhit docs not rule out that this cyst was due 10 muscle tear as alleged by the plaintiff. and does not rule out that it was not caused by [* 4] Santos v Grunnt'r Index No. 09-36592 Pagc NO.4 the subject accident. Based upon the foregoing. it is detamined that the defendant has failed to estahlish pnma facie entitlclllcnI to summary judgment on the basis that Jose Santos did not sustain a serious injury as dclined in Insurance Law § 5102 Cd) as to the first catcgory of injury. MARTA BENITEZ By way of her veri tied bill or particulars. Marta Benitez alleges that as a result of this accident she has sustained injuries consisting of loss of enjoyment of life; cervical spine posterior disc bulges at C2- 3, C5-6, and C6-7 encroaching on the ventral aspect orthe thecal sac and lateral rccesses bilaterally; lumbar posterior disc bulges at L2-3 through L4-5 which arc each encroaching upon the vcntral aspect ol'the thecal sac and lateral rccesses bilaterally: lumbar posterior disc herniation at the LS-S I level favoring the right side and encroaching upon the ventra! aspect oCthe thecal sac and lateral recesses bilaterally with the right side greater than the left, impinging upon the ventral margin of the right S 1 nerve root; right shoulder straight acroll1ium process with mild hypertrophic changes ofthc acromioclavicular joint causing a mild to moderate degree of subacromial impingemenl upon the musculotendinous junction ufthc supraspinatus; signal abnormality in the distal supraspinatus tendon crossing a substantial portion oflhe thickness and possibly crossing its full thickness, consistent with a tear and/or tendinitis and may represent a small full thickness leal' or significant thickness partial tear of the supraspinatus; small amount of fluid in the subcromial subdeltoid bursa which could be related to the possible tear or represent some bursitis; arthroscopic surgery, shaving and debridement of the glenoid labrum leal' and subacromial decompression; right knee moderate size joint effusion; post concussion syndrome; hcadaches; jaw pain; radiculitis throughout the entire spine: aggravation of prior injuries. Michacl J. Katz, M.D. set forth in his atlinnation that he performed an independent orthopedic examination on Marta Benitez and that he revicv·,rcd various records pertaining to her claim of injuries, as well as color copies of the intra-operative pictures taken during the arthroscopic surgcry performcd on heron July I, 2007. Dr. Katz stated lhat upon his review of those intra-operative pictures, he noted no acute tears and that the de1"initivc changes shown therein were::more likely due to the plaintiffs job as an office cleaner rather than anything related to the subject accident of April 17,2007. J lowever, Dr. Katz docs not set rorth the basls for his eonclusory opinion which is unsupported by evidentiary proof. During his independent orthopedic examination of Marta Benitez, Dr. Katz noted thm she sustained injuries to her neck. back. right shoulder. and right knee. and that she underwent arthroscopic surgery to the right shoulder 011 July 1.2007. tollol"ved by physical therapy three to four times per week for eight to nine months. At the exam, she complained ofpaill ill her right shoulder with lining. Dr- Katz set forth the range of motion findings determined with a goniometer in examining Marta Benitez's cervical and thoracolumbar spine. her right shoulder and her right knee, He compared his findings to the normal ranges of motion and set forth no deficits, Ilis diagnosis was that of cervical strain-resolved: lumbosacral strain-resolved. right knee contusion-resolved. and status successfuL post arthroscopy of the right shoulder. There arc IllCtual issucs raised by Dr. Katz who has set fi:lfIh that the intra-operative photos orthe right shoulder arthroscopy of July 10.2007 indicated definitlve changes with no acute tears. although he docs not state what those definitive changes are. He added that the MR! report of' her right shall Ider of June 9. 2007, ind icted tendillltis or partial tcar of the supraspi natlls, \Vhich con!l icts with the operatiw report which indicated a glcnoid labrum tear and subacromial decompression, as well as partial tear or thc rotator culT. He (hen stated that "[tlh!.?rc arc 110 acute visualized 011the intra-operative photos." He added that it is rar 111m!.? likely that th..::pathology that was addressed in the I'ight shoulder was the result or Benitez working us an ortice cleaner (hall anything that ()CClllT!.?ds a restrained rrollt passcnger a Ilowcver. Dr. KatL does not prnvi(iI.? [* 5] Santos v Cirunner Index No. 09-36592 Page No.5 ~lbasis lor his concJusory op111ioll.which IS unsupported by evidentiary proof Although Marta Benitez alleges to have sustained radiculitis relating to her spine, no report from all examining neurologist has been submitted by the defendant, thus fUl1her precluding summary judgment (Browt/{fme I' Caut/ura, supra; Rot/riguez I' Schickler, slIpm). Jeffrey Warhit, M,D. has set torth in his affinnatlon concerning his independent radiology review of the MR1's of Marta Benitez's lumbosacral spine dated May 30, 2007, cerVical spine dated June 2, 2007, and right shoulder dated June 9, 2007. Dr. Warhit indicated that he saw a small disc herniation at L5-S 1 which was a degenerative change, however, he did not set forth the basis for his opinion that It was a degenerative change, or when such degeneration occurred. It is noted in his report dated November 1,2010, that his impressioll was that the disc herniation at the 1,5-SI level "muy well be on a degenerative basis." Hc continued that there is no evidencc ofa traumatic injury to the lumboscaral spine, but docs not set forth the basis for this conelusory opinion. As to the cervical spine, he noted mild bulging discs at C5-6 and C6-7, \-vith degenerative changes from C4-C7. Again, he did not set forth the basis for his 0pll1ion that it \vas a degenerative change, or when such degeneration occurred. In his report of November 1, 20 I0, he also noted intervertebral disc space narrowing and anterior and posterior ostcophyte formatioll. In that report he noted that the bulging dises noted at C5/C6 and C6/C7 levels '·may well be on a degenerative basis," however, he did not rule out that they were proximately caused by the accident. His reviev·.... rthe plaintifCs right shoulder MRI concluded that she had impingement syndrome o secondary to degenerative changes In the acromioclavicular joint He stated that there was no evidcnce of a traumatic injury to the right shoulder, but did not state any basis for his opinions. Such factual issues preclude summary.judgment. Based upon the foregoing, it is determined that the defendant Failed to establish prima facie entitlement to summary judgment on the basis that !'vlaria Benitez did 110tsustain a serious injury as defined in Insurance Law ~ 5102 (d) as to the first category of injury. CARMEN SARA VIA By way of her verified bill ofpaniculars, Cannen Saravra alleges that as a result of this accident she sustained injuries conSIsting of cervical spine postenor disc herniation at C5-6 favoring the right side, encroaching lIpon the ventral aspect of the thecal sac, impinging upon the right ventral aspect ol'the corcL mildly deforming the ventral aspect ol'the cord; lumbar posterocentral disc herniutlOn at L5-Sl encroaching upon the ventral aspect nC the thecal sac; !ell shoulder mildly curved acromion process with mild hypertrophic changes of the acrom ioela VIC ular .101 nt causing a mi lei to 11l0dernte degree 0 f su bac rom ial im pi ngement upon the m L1sculotencli110US .Junction 0 r the su praspi mltus; riny subcortical cystic changes 1n the greater t 11bcrosi ty at the inscrtion ol'the infi·aspinatlls tendon: left shoulder-signal abnormality within the distal supraspinatus tendoll ,,".'hich docs not cross the full thickness of the tcndon and particularly involve the bursal surface. consistent ,vith a partial leal' an%r tendinitis \vithout retraction, which rcquired arthroscopic surgery, shaving. and debridement of the rolatn [.culT and the glenoid labrum, and su bacrol111 decompression. al Dr. Katz has set forth ill his af'firl11atlonthal he reviewed various records, including col(lr copies oCthe intra-operative pictures taken dUrIng C::mnen Saravia's arthoscopic surgery perli)rl1lcd on July 10,2007. He staled that his review of those pictures revealed that there were pre-existing degenerative changes, including a degenerative labrum rotator cllfl~ which arc not related to the subject accident. However, he has not set I'ol,th the basis lor tIllS opinion or what findings indicated that there vvere degenerative changes, or when they OCCUlTed. During his independent orthopedic examination of the plaintin~ he noted that she alleged injuries to her neck, back [* 6] Santos v GrUllner lndex No_ 09-36592 Page No.6 and both shoulders. and that she had a right shoulder arthroscopy. Dr. Katz set forth his range ofl11otion f~ndings determined \vith a goniometer during his examination of the pla1l1titY's cervical, lumbar. nght und kH shoulder. The last page of his rep0l1 has not been provided to this court. However. he incorporated the report into his later artirmation wherein he set forth his conclusory opinion that her injuries \Overedegenerative, and unrelated to the accident. thus precluding sumlllary judgment relative to Carmen Saravia's right shoulder injury. Likewise, the affirmation of Jeffrey Warhit M.D. relative to his review of ear men Sanlvla's MRI of her right shoulder dated May] 9. 2007. indicated that he found impingement syndrome secondary to degenerative changes in the acromioclavicu!arjoint. HoweveL although he stated he found no evidence of traumatic injury, his opinions arc conclusory and unsupported. Based upon the foregoing, it is determined that the defendant failed to establish prima facie entitlement to summary judgment on the basis that Carmen Saravia did not sustain a serious injury as defined in Insurance Law ~ 5102 (d) as to the first category of injury. Turning to the second category oCinjurics defined in Insurancc Law 0 5102 (d), it is determined that the defendant's examining physician did not examine the plaintiffs during the statutory period of 180 days following the accident, thus rendering defendant's physicians' affirmation insufficient to demonstrate <:l1titlcment to summary judgment on the Issue of whether any o1'the plaintiffs were unable to substantially perform all of the material acts which constituted their usual and customary daily activities for a period in excess of90 days during the IXOdays immediately foJlov\I'ing the accident (Blanchard v Wilcox, 283 AD2d X21, 725 NYS2d 433 [3d Dept 20011; see, Uddin v Cooper, 32 AD3d 270, 820 NYS2d 44 [1 st Dept 2006]; Toussaint v Claudio, 23 AD3d 268, 803 NYS2d 564 [1st Dept2005]), and the examining physician does not comment on the same. Additionally, there are factual issues concerning this category of inJury relativc to each pJaintifT. Jose Santos testified at his examination before trial to the extent that he had no injury to his right shoulder or neck prior to this accident, and worked in carpentry five days a week_ After the accident, he experienced pain in his right shoulder and had surgery performed after chiropractic treatment did not help rellcve his pain. Aner the sur~ery, somc of the pain in his shoulder was relieved, but he still experiences pain in that shoulder. lie is now unable to pick up his ladder fi'om the truck and stretch his arm, and has had to change the \Ovayhe moves the ladder. l-1ecan only lift sheet rock if hc cuts it in half. He cannot lift heavy Items any longer. Marta Benitez testined to the extent that ancr the accident, she l'"cltpain in her chest and !"Ightshoulder and went to Huntington Hospital to be treated. Thereafter, she fiJllowed Lipwith Dr. Anand for pain in her back, chcst and arm, and underwent chiropractic treatment. Subsequently. surgery \vas performed to her right shoulder, follcl\,vcd by physical thcrapy. howcvcr. she still experiences pain in her I·ight shoulder on a dally basis. i\bout once a weck. she experiences pain in her lower back and with numbness in hcr right leg. I)rim to this accident, she experienced no problcms or physical complaints with her right shoulder or back. Shc was involved 111 a subsequent accIdcnt and sustained mjury to her left shoulder. As a result orthe injuries alleged to have been sustamed in the sub.lect accident, she cannotliit heavy items, and whcn she liHs lighter Items. she has to J-irst put the item on her f(lOt before she can lift the item Shc can not 1110veher arm backward and ()rward. Priorto the accident, she was employed by Dr. Davis cleaning his office I'iw days a week, three to four hours each day, and continues to \vorK for him She also worked dOIng house cleaning. but is not currently doing so. Prior to the accident. she also worked at bullets. but since the accident, she can no longer lift the chal-ing dishes, and can no longer do that vv'orK. [* 7] Santos v Cirullncr Index No. 09-36592 Page No.7 CJrrnen Saravia testified to the extent that on the date or the accident she W3S working at the Sweet Ilollow Diner as a parking attendant. and sometimes cooked in the kitchen. After the accident, she did not return to thmjoh, or to <lny other job she previously worked, as she still experiences back pain from the back injury allegedly suswincd in the subject accident. She stated that she is sixty-seven years of age and is now receiving social security for her retirement. She has dilliculty remembering things but did not know the diagnosis for her condition. She testi fled that on April 17, 2007, when the accident occurred. she was a passenger in the rear seal. sealed in the middle. in the vehicle operated by her son, Jose Santos. As a result of the impact, her back came into conlact wilh the noor ot"the car. She was seen in the emergency room at Huntington Hospital and received physical therapy lor three months t"or her back and complaints of pain in her right knee thereafter. She could not remember iCshe had complaints oCpain or injury to any other parts of her body arising out ofthc accident. and she could not rcmember Dr. Mannes who performed her shoulder surgery, and could not remember that she had the right shoulder surgery as a result of the subject accident. Since the accident, she cannot lift heavy things and has to take her laundry 10 Ihe laundromat instead. She had a subsequent accident while a passenger in the vehicle operated by another son, William Cali:\to. causing her back injury to become worse. These faclual issues raised in defendants' moving papers preclude summary judgment, as the defendants failed to satist)' the burden of establishing, prima Cacie, that plaintiff did not sustain a ""serious injury" within the meaning of Insurance Law 5102 (d) (see. Agatlte v TUII Chell Wallg, 98 NY2d 345, 746 NYS2d 865 [20061); see also. Walters v Papallastassiou. 3 J AD3d 439.819 NYS2d 48 [2d Dept 2006}). Inasmuch as the moving party in motion (00 I) failed 10 establish her prima facie entitlement to judgment as a matter of law in the first instance on the issue of"serious injury" within the meaning ofrnsurancc Law § 5102 (d). it is unnecessary to consider whether the opposing papers were sufficient to raise a triahle issue of fact (see, Yong Deok Lee v Singlr, 56 AD3d 662.867 NYS2d 339 [2e1Dept 2008]); Krayul' Torella, 40 AD3d 588, 833 NYS2d 406 rzd Dcpt 2007]; Walker t' Village OjOSSillillg, 18 AD3d 867, 796 NYS2d 658 [2d Dept 200S]). Accordingly. its entirety. motion (001) hy the defendant for summary judgment dismissing --, Dated.kQkmber 1,~ 111 Z- FINAL I)JSPOSITION ~X_' _ NON-FINAL I>ISI'OSITION the complaint is denied ill
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