Ortiz v. S&a Taxi Corp., 2009-04267
| Court | New York Supreme Court Appellate Division |
| Citation | 2009 NY Slip Op 9008,891 N.Y.S.2d 112,68 A.D.3d 734 |
| Docket Number | 2009-04267 |
| Parties | LUZ MARINA ORTIZ, Respondent, v. S&A TAXI CORP. et al., Appellants. |
| Decision Date | 01 December 2009 |
v.
S&A TAXI CORP. et al., Appellants.
In an action to recover damages for personal injuries, the
defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), entered April 2, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground other than that relied upon by the Supreme Court. Contrary to the defendants' contention on appeal, they failed to meet their prima facie burden of showing 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their motion, the defendants relied, inter alia, upon the affirmed medical report of their examining orthopedic surgeon, in which he noted the existence of a significant limitation in the range of motion, i.e., flexing, of the plaintiff's lumbar spine (see Buono v Sarnes, 66 AD3d 809 [2009]; Held v Heideman, 63 AD3d 1105 [2009]). While he opined that this limitation was "subjective," he failed to explain or substantiate his basis for that conclusion.
Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Buono v Sarnes, 66 AD3d 809 [2009]; Held v Heideman, 63 AD3d 1105 [2009]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
SKELOS, J.P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.
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...Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173; Bengaly v. Singh, 68 A.D.3d 1030, 890 N.Y.S.2d 352; Ortiz v. S & A Taxi Corp., 68 A.D.3d 734, 891 N.Y.S.2d 112). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's paper......
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Morales v. Calcano, 2020-34615
...Gervasio, 81 N.Y.2d 1062, 1062 [1993];Wallace v. Adam Rental Transp. Inc., 68 A.D.3d 856, 857 [2d Dept 2009]; Ortiz v. S & A Taxi Corp., 68 A.D.3d 734, 735 [2d Dept 2009]). Nevertheless, even if the defendants had met their burden, the motions would still be denied as in response, plaintiff......
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Cheour v. Pete & Sals Harborview Transp., Inc.
...Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173; Bengaly v. Singh, 68 A.D.3d 1030, 890 N.Y.S.2d 352; Ortiz v. S & A Taxi Corp., 68 A.D.3d 734, 891 N.Y.S.2d 112). The defendants also relied on the affirmed medical report of Dr. Sarasavani Jayaram, a neurologist, which also set forth ......
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Tavaras v. Herkimer Taxi Corp.
...Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173; Bengaly v. Singh, 68 A.D.3d 1030, 890 N.Y.S.2d 352; Ortiz v. S & A Taxi Corp., 68 A.D.3d 734, 891 N.Y.S.2d 112). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's paper......
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Smith v. Hartman
...examined Mr. Smith more than four years post-accident ( see Kjono v. Fenning, 69 A.D.3d 581, 893 N.Y.S.2d 157; Ortiz v. S & A Taxi Corp., 68 A.D.3d 734, 891 N.Y.S.2d 112; Buono v. Sarnes, 66 A.D.3d 809, 888 N.Y.S.2d 79). As to Mr. Demirdjian, Dr. Bernhang noted significant limitations durin......
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Morales v. Calcano, 2020-34615
...Gervasio, 81 N.Y.2d 1062, 1062 [1993];Wallace v. Adam Rental Transp. Inc., 68 A.D.3d 856, 857 [2d Dept 2009]; Ortiz v. S & A Taxi Corp., 68 A.D.3d 734, 735 [2d Dept 2009]). Nevertheless, even if the defendants had met their burden, the motions would still be denied as in response, plaintiff......