Mondevil v. Kumar

• Decision Date: 29 June 2010
• Citation: 903 N.Y.S.2d 248,74 A.D.3d 1295
• Parties: Daphnee MONDEVIL, respondent, v. Surinder KUMAR, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

903 N.Y.S.2d 248

74 A.D.3d 1295

Daphnee MONDEVIL, respondent,

v.Surinder KUMAR, et al., appellants, et al., defendants.

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

June 29, 2010.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.

Michelstein & Associates, PLLC, New York, N.Y. (Mark D. Plush of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants Surinder Kumar and Paramjit Multani appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated March 3, 2010, which denied their motion 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).

ORDERED that the order is affirmed, with costs.

The Supreme Court did not err in concluding that the appellants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaningof 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 appellants relied upon, inter alia, the affirmed medical report of their examining orthopedic surgeon. The surgeon noted in his report that he found significant limitations in the plaintiff's cervical and lumbar spine when he examined the plaintiff more than two years after the accident ( see Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Quiceno v. Mendoza, 72 A.D.3d 669, 897 N.Y.S.2d 643; Giacomaro v. Wilson, 58 A.D.3d 802, 803, 872 N.Y.S.2d 180; McGregor v. Avellaneda, 50 A.D.3d 749, 749-750, 855 N.Y.S.2d 625; Wright v. AAA Constr. Servs., Inc., 49 A.D.3d 531, 855 N.Y.S.2d 149).

Since the appellants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact ( see Smith v. Hartman, 73 A.D.3d at 736, 899 N.Y.S.2d 648; Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

COVELLO, J.P., ANGIOLILLO, LEVENTHAL and ROMAN, JJ., concur.