Opinion
2021–01671 Index No. 617410/17
11-02-2022
Bruce R. MAHLER, et al., appellants, v. Wilda I. LEWIS, respondent, et al., defendant.
Joseph B. Fruchter, Hauppauge, NY, for appellants. Russo & Gould, LLP, New York, NY (David S. Gould and Trishe´ L.A. Hynes of counsel), for respondent.
Joseph B. Fruchter, Hauppauge, NY, for appellants.
Russo & Gould, LLP, New York, NY (David S. Gould and Trishe´ L.A. Hynes of counsel), for respondent.
COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated February 23, 2021. The order granted the motion of the defendant Wilda I. Lewis for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff Bruce R. Mahler 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 defendant Wilda I. Lewis for summary judgment dismissing the complaint insofar as asserted against her is denied.
The plaintiff Bruce R. Mahler (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the injured plaintiff in a motor vehicle accident. The defendant Wilda I. Lewis (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against her on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. In an order dated February 23, 2021, the Supreme Court granted the defendant's motion, and the plaintiffs appeal.
The defendant failed to meet her prima facie burden of showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendant failed to submit competent medical evidence establishing, prima facie, that the injured plaintiff did not sustain a serious injury to the cervical, thoracic, or lumbar regions of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). One of the defendant's experts found significant limitations in the range of motion of the cervical and lumbar regions of the injured plaintiff's spine, and failed to adequately explain and substantiate, with competent medical evidence, his belief that the limitations were self-imposed (see Mondesir v. Ahmed, 175 A.D.3d 1291, 105 N.Y.S.3d 910 ; Singleton v. F & R Royal, Inc., 166 A.D.3d 837, 838, 88 N.Y.S.3d 81 ; Rivas v. Hill, 162 A.D.3d 809, 810–811, 79 N.Y.S.3d 225 ; Miller v. Ebrahim, 134 A.D.3d 915, 916, 20 N.Y.S.3d 538 ; Mercado v. Mendoza, 133 A.D.3d 833, 834, 19 N.Y.S.3d 757 ). The expert's report is also silent as to whether he examined the range of motion of the thoracic region of the injured plaintiff's spine, which was also alleged to have been injured in the accident. Further, the defendant failed to establish, prima facie, that the injured plaintiff's alleged spinal injuries were not caused by the accident (see Navarro v. Afifi, 138 A.D.3d 803, 804, 30 N.Y.S.3d 188 ). Since the defendant failed to meet her prima facie burden, it is unnecessary to determine whether the opposing papers were sufficient to raise a triable issue of fact (see Singleton v. F & R Royal, Inc., 166 A.D.3d at 838, 88 N.Y.S.3d 81 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against her.
DUFFY, J.P., RIVERA, DOWLING and TAYLOR, JJ., concur.