Miller v Ebrahim

Miller v Ebrahim 2015 NY Slip Op 09263 Decided on December 16, 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 December 16, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.
2014-11515
(Index No. 18293/12)

[*1]Aishah Miller, appellant, et al., plaintiff,

v

Anis Ebrahim, et al., respondents.

Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Julie T. Mark of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY (Christina A. Marshall of counsel), for respondents.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff Aishah Miller appeals from an order of the Supreme Court, Queens County (Gavrin, J.), entered October 31, 2014, which granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted by her on the ground that she 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 defendants' motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Aishah Miller is denied.

The defendants failed to meet their prima facie burden of demonstrating that the plaintiff Aishah Miller 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). One of the defendants' experts found significant limitations in the range of motion in the lumbar region of her spine (see Miller v Bratsilova, 118 AD3d 761), and he failed to adequately explain and substantiate his belief that the limitations were self-imposed (see India v O'Connor, 97 AD3d 796; cf. Perl v Meher, 18 NY3d 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 Miller 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 defendants' motion for summary judgment dismissing the complaint insofar as asserted by Miller.

MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court