Leopold v. N.Y. City Transit Auth.

• Decision Date: 20 April 2010
• Citation: 899 N.Y.S.2d 626,72 A.D.3d 906
• Parties: Marie LEOPOLD, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 626
72 A.D.3d 906

Marie LEOPOLD, appellant,
v.
NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.

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

April 20, 2010.

Robert A. Flaster, P.C., New York, N.Y. (Joseph Gaba of counsel), for appellant.

Wallace D. Gossett (Steve S. Efron, New York, N.Y., of counsel), for respondents.

72 A.D.3d 906

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated January 14, 2009, which granted the defendants' motion for summary judgment dismissing the

72 A.D.3d 907

complaint 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, the defendants' 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) is denied, and a subsequent order of the same court dated August 12, 2009, made upon renewal, is vacated.

899 N.Y.S.2d 627

The 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 upon, inter alia, the affirmed medical report of Barbara Joyce Freeman, their examining orthopedic surgeon. In that report, Dr. Freeman noted significant limitations in the range of motion within the region of the plaintiff's lumbar spine ( see Catalan v. G and A Processing, Inc., 71 A.D.3d 1071, --- N.Y.S.2d ---- [2010]; Croyle v. Monroe Woodbury Central School District, 71 A.D.3d 944, 896 N.Y.S.2d 892; Kjono v. Fenning, 69 A.D.3d 581, 893 N.Y.S.2d 157; Held v. Heideman, 63 A.D.3d 1105, 883 N.Y.S.2d 246; Torres v. Garcia, 59 A.D.3d 705, 874 N.Y.S.2d 527; Bagot v. Singh, 59 A.D.3d 368, 871 N.Y.S.2d 917; Hurtte v. Budget Roadside Care, 54 A.D.3d 362, 861 N.Y.S.2d 949; Jenkins v. Miled Hacking Corp., 43 A.D.3d 393, 841 N.Y.S.2d 317; Bentivegna v. Stein, 42 A.D.3d 555, 556, 841 N.Y.S.2d 316; Zamaniyan v. Vrabeck, 41 A.D.3d 472, 473, 835 N.Y.S.2d 903). Furthermore, while Dr. Freeman set forth findings in the report concerning the range of motion in the plaintiff's right...