Opinion
05-31-2017
John PROTONENTIS, appellant, v. Joseph BATTAGLIA, et al., respondents.
Cellino & Barnes, P.C., Buffalo, NY (John Lavelle and Ellen B. Sturm of counsel), for appellant. Silverman Shin & Byrne PLLC, New York, NY (Michael Byrne and Andrew V. Achiron of counsel), for respondents.
Cellino & Barnes, P.C., Buffalo, NY (John Lavelle and Ellen B. Sturm of counsel), for appellant.
Silverman Shin & Byrne PLLC, New York, NY (Michael Byrne and Andrew V. Achiron of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated January 20, 2016, which granted the defendants' motion for summary judgment dismissing the complaint 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of demonstrating that the plaintiff 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 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 ). One of the defendants' experts found significant limitations in the range of motion of the plaintiff's right shoulder and the lumbar region of his spine, and the expert failed to adequately explain and substantiate his belief that the limitations were self-imposed (see 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 ; India v. O'Connor, 97 A.D.3d 796, 948 N.Y.S.2d 678 ; cf. Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182 ).
Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
RIVERA, J.P., AUSTIN, MILLER and BARROS, JJ., concur.