Artis v. Lucas
Citation | 2011 N.Y. Slip Op. 03983,84 A.D.3d 845,921 N.Y.S.2d 910 |
Parties | Don ARTIS, respondent, v. Pedro LUCAS, appellant. |
Decision Date | 10 May 2011 |
Court | New York Supreme Court |
84 A.D.3d 845
921 N.Y.S.2d 910
Don ARTIS, respondent,
v.
Pedro LUCAS, appellant.
Supreme Court, Appellate Division, Second Department, New York.
May 10, 2011.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Robert D. Grace of counsel), for appellant.
Louis Grandelli, P.C., New York, N.Y. (Leigh D. Eskenasi of counsel), for respondent.
[84 A.D.3d 845]In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated November
9, 2010, which denied his 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.
The defendant failed to meet his 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 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). In support of his motion, the defendant relied upon, inter alia, the affirmed medical report of Dr. Alan M. Crystal. When this doctor examined the plaintiff in February 2010, he noted significant limitations in the range of motion of the lumbar region of the plaintiff's spine ( see Ortiz v. Orlov, 76 A.D.3d 1000, 1001, 907 N.Y.S.2d 688;Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517;Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648;Leopold v. New York City Tr. Auth., 72 A.D.3d 906, 899 N.Y.S.2d 626). Although Dr. Crystal indicated that the limitations noted were subjective in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence ( see Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654;Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667;cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632;Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352;Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45;Torres v. Garcia, 59 A.D.3d 705, 706, 874 N.Y.S.2d 527;Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366).
Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiff's papers [84 A.D.3d 846]submitted in opposition were...
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