Mercado v. Mendoza

• Decision Date: 25 November 2015
• Citation: Mercado v. Mendoza, 2015 NY Slip Op 8717, 133 A.D.3d 833, 19 N.Y.S.3d 757(Mem) (N.Y. App. Div. 2015)
• Parties: Rodney MERCADO, appellant, v. Lewis H. MENDOZA, et al., respondents.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 833

19 N.Y.S.3d 757 (Mem)

2015 N.Y. Slip Op. 08717

Rodney MERCADO, appellant,

v.Lewis H. MENDOZA, et al., respondents.

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

Nov. 25, 2015.

Subin Associates LLP, New York, N.Y. (Robert J. Eisenof counsel), for appellant.

Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Peter F. Brehenyof counsel), for respondents.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Gavrin, J.), dated October 7, 2013, as granted the defendants' cross 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)as a result of the subject accident.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' cross motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of demonstrating 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, 955–956, 582 N.Y.S.2d 990, 591 N.E.2d 1176), as the defendants' expert found significant limitations in the range of motion in the lumbar region of the plaintiff's spine (see Miller v. Bratsilova, 118 A.D.3d 761, 987 N.Y.S.2d 444). The defendants' expert failed to adequately explain and substantiate his belief that the limitation of motion in the lumbar region of the plaintiff's spine was self-imposed (see India v. O'Connor, 97 A.D.3d 796, 948 N.Y.S.2d 678; cf. Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424; Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182).

Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867).

BALKIN, J.P., CHAMBERS, COHENand HINDS–RADIX, JJ., concur.