Opinion
2008-1934 Q C.
Decided December 1, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered September 11, 2008, deemed from a judgment of the same court entered October 3, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 11, 2008 order granting defendants' motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is reversed without costs, the order granting defendants' motion for summary judgment is vacated and defendants' motion for summary judgment dismissing the complaint is denied.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted the motion, and this appeal by plaintiff ensued. A judgment dismissing the complaint subsequently was entered, from which the appeal is deemed to be taken ( see CPLR 5501 [c]).
The papers submitted by defendants in support of their motion were insufficient to meet their prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). Defendants' examining physician found restrictions in plaintiff's cervical and lumbar spine and shoulders when she examined plaintiff seven years after the accident ( see Zamaniyan v Vrabeck, 41 AD3d 472; Spuhler v Khan, 14 AD3d 693), which findings raised an issue of fact as to whether plaintiff had sustained a serious injury ( see Picott v Lewis, 26 AD3d 319; McDowall v Abreu, 11 AD3d 590). Since defendants failed to meet their initial burden on their motion, it is unnecessary to reach the question of whether plaintiff's papers were sufficient to raise a triable issue of fact ( see Held v Heideman, 63 AD3d 1105; Coscia v 938 Trading Corp., 283 AD2d 538).
Accordingly, the judgment is reversed, the order granting defendants' motion for summary judgment is vacated, and defendants' motion is denied.
Rios, J.P., Pesce and Golia, JJ., concur.