Cuevas v. Compote Cab Corp.
| Citation | 2009 NY Slip Op 03125,61 A.D.3d 812,878 N.Y.S.2d 124 |
| Decision Date | 21 April 2009 |
| Docket Number | 2008-08675. |
| Parties | MARIBEL CUEVAS et al., Respondents, v. COMPOTE CAB CORP. et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiff Maribel Cuevas 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]). The defendants' neurologist found restrictions in the range of motion of the plaintiff's lumbar spine, which he described as "self-restricted." However, the neurologist failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the limitations that were noted were self-restricted (see Colon v Chuen Sum Chu, 61 AD3d 805 [2009] [decided herewith]; Torres v Garcia, 59 AD3d 705 [2009]; Busljeta v Plandome Leasing, Inc., 57 AD3d 469 [2008]). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment without considering the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
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