Opinion
2012-07-25
Dwayne LITTLE, respondent, et al., plaintiff, v. John AJAH, et al., appellants.
Russo & Toner, LLP, New York, N.Y. (John J. Komar, Naomi M. Taub, and Matthew E. Kelly of counsel), for appellants. Harmon, Linder, & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for respondent.
Russo & Toner, LLP, New York, N.Y. (John J. Komar, Naomi M. Taub, and Matthew E. Kelly of counsel), for appellants. Harmon, Linder, & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for respondent.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated November 28, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Dwayne Little on the ground that he 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 affirmed insofar as appealed from, with costs.
The Supreme Court determined that the defendants failed to meet their prima facie burden of showing that the plaintiff Dwayne Little (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. We agree, albeit on grounds different from those upon which the Supreme Court relied.
In support of their motion for summary judgment dismissing the complaint insofar as asserted by the injured plaintiff, based on the issue of serious injury, the defendants relied upon, inter alia, the affirmed medical report of Dr. Gregory Montalbano, their expert orthopedist. This report failed to eliminate all triable issues of fact, and the defendants, thus, failed to meet their prima facie burden. Dr. Montalbano examined the injured plaintiff almost five years after the accident. During his examination of the injured plaintiff, he noted significant limitations in the ranges of motion of the cervical region of the injured plaintiff's spine, as well as his right hip and right knee ( see Scott v. Gresio, 90 A.D.3d 736, 934 N.Y.S.2d 351;Desulme v. Stanya, 12 A.D.3d 557, 558, 785 N.Y.S.2d 477;Espinoza v. Dinicola, 8 A.D.3d 225, 777 N.Y.S.2d 313). The injured plaintiff, in his bill of particulars, alleged exacerbations of preexisting injuries to these areas. While Dr. Montalbano opined that these injuries may be causally related to a prior accident, he failed to demonstrate that the limitations he noted were the result of the prior accident, rather than from exacerbations caused by the subject accident ( see Edouazin v. Champlain, 89 A.D.3d 892, 894–895, 933 N.Y.S.2d 85).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the injured plaintiff's opposition papers were sufficient to raise a triable issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Cues v. Tavarone, 85 A.D.3d 846, 846–847, 925 N.Y.S.2d 346;Grisales v. City of New York, 85 A.D.3d 964, 965, 925 N.Y.S.2d 633;Pero v. Transervice Logistics, Inc., 83 A.D.3d 681, 683, 920 N.Y.S.2d 364;Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).
The defendants' remaining contention is without merit ( see Johnson v. Dow, 56 A.D.3d 1288, 1289, 867 N.Y.S.2d 814).