Kim v. Orourke

• Decision Date: 23 February 2010
• Citation: 70 A.D.3d 995,2010 N.Y. Slip Op. 01613,893 N.Y.S.2d 892
• Parties: CHUN OK KIM, appellant,v.Mark J. OROURKE, respondent.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 995
893 N.Y.S.2d 892
2010 N.Y. Slip Op. 01613

CHUN OK KIM, appellant,
v.
Mark J. OROURKE, respondent.

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

Feb. 23, 2010.

Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for appellant.Muscarella & Diraimo, LLP (Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. [Elizabeth M. Hecht], of counsel), for respondent.

[70 A.D.3d 995] In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered February 17, 2009, which granted the defendant's motion for summary judgment dismissing the

[893 N.Y.S.2d 893]

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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The defendant failed to make a prima facie 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). The defendant's own examining neurologist reported findings of limitations in the ranges of motion in the cervical and lumbar regions of the injured plaintiff's spine ( see Powell v. Prego, 59 A.D.3d 417, 872 N.Y.S.2d 207; Norme v. Ajons, 57 A.D.3d 749, 870 N.Y.S.2d 91; Wright v. AAA Constr. Servs., Inc., 49 A.D.3d 531, 855 N.Y.S.2d 149; Umar v. Ohrnberger, 46 A.D.3d 543, 846 N.Y.S.2d 612; Bentivegna v. Stein, 42 A.D.3d 555, 841 N.Y.S.2d 316), and he failed to “explain or substantiate, with any objective medical evidence, the basis for his conclusion that the noted limitations were self-restricted” ( Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; see Hi Ock Park–Lee v. Voleriaperia, 67 A.D.3d 734, 888 N.Y.S.2d 215; Chang Ai Chung v. Levy, 66 A.D.3d 946, 887 N.Y.S.2d 676; Moriera v. Durango, 65 A.D.3d 1024, 886 N.Y.S.2d 45). Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the plaintiff's opposition papers ( see Held v. Heideman, 63 A.D.3d 1105, 883 N.Y.S.2d 246; Landman v. Sarcona, 63 A.D.3d 690, 880 N.Y.S.2d 168; [70 A.D.3d 996] Alam v. Karim, 61 A.D.3d 904, 879 N.Y.S.2d 151; Liautaud...