Britt v. Bustamante

• Decision Date: 19 October 2010
• Citation: 77 A.D.3d 781,909 N.Y.S.2d 138
• Parties: Cathleen M. BRITT, appellant, v. Antonio L. BUSTAMANTE, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 138

77 A.D.3d 781

Cathleen M. BRITT, appellant,

v.Antonio L. BUSTAMANTE, et al., respondents, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 19, 2010.

Wallace, Witty, Frampton & Veltry, P.C., Brentwood, N.Y. (Peter J. Graff of counsel), for appellant.

Christine Malafi, County Attorney, Hauppauge, N.Y. (Diana T. Bishop of counsel), for respondents.

PETER B. SKELOS, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), entered March 3, 2009, which, upon remittitur from this Court ( see Britt v. Bustamante, 55 A.D.3d 858, 866 N.Y.S.2d 740), granted that branch of the motion of the defendants Antonio L. Bustamante and County of Suffolk which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendants Antonio L. Bustamante and County of Suffolk which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

The defendants Antonio L. Bustamante and County of Suffolk (hereinafter togetherthe defendants) 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 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 their motion, the defendants relied, inter alia, on the affirmed medical report of an orthopedist who examined the plaintiff more than three years after the accident, and noted significant range-of-motion limitations in the plaintiff's cervical spine. In view of the orthopedist's findings, the defendants failed to establish their prima facie entitlement to judgment as a matter of law ( see Fields v. Hildago, 74 A.D.3d 740, 907 N.Y.S.2d 15; 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; Catalan v. G & A Processing, Inc., 71 A.D.3d 1071, 1072, 901 N.Y.S.2d...