Opinion
2007-117 Q C.
Decided March 11, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), dated June 9, 2006. The order, insofar as appealed from, denied defendant's motion for summary judgment as to plaintiff Alison Caballero.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
Order, insofar as appealed from, affirmed without costs.
Defendant moved for summary judgment on the ground that plaintiffs did not sustain a serious injury pursuant to Insurance Law § 5102 (d). By stipulation, plaintiff Salvadore Caballero subsequently discontinued his action. The court below denied defendant's motion as to plaintiff Alison Caballero, and the instant appeal by defendant ensued.
The affirmed medical report of defendant's examining orthopedist recorded a restriction of motion of plaintiff's cervical spine, despite the doctor's determination that there was no objective evidence of any ongoing orthopedic disability and that any sprain or strain of the cervical and lumbar spine was "resolved." Accordingly, the motion papers failed to make a prima facie showing that plaintiff did not sustain a serious injury and, thus, failed to shift the burden to plaintiff ( see Tchjevskaia v Chase , 15 AD3d 389 ; Johnson v Springer, 14 Misc 3d 145[A], 2007 NY Slip Op 50399[U] [App Term, 2d 11th Jud Dists 2007]). Under these circumstances, it is unnecessary to consider whether plaintiff's papers in opposition to defendant's motion were sufficient to raise a triable issue of fact ( see Fleury v Benitez, 44 AD3d 996; Coscia v 938 Trading Corp., 283 AD2d 538). Consequently, defendant's motion for summary judgment as to Alison Caballero was properly denied.
Weston Patterson, J.P., Golia and Rios, JJ., concur.