Tavaras v. Herkimer Taxi Corp.

• Decision Date: 30 November 2010
• Parties: Nubia TAVARAS, respondent, v. HERKIMER TAXI CORP., et al., appellants.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 672

78 A.D.3d 1162

Nubia TAVARAS, respondent,

v.HERKIMER TAXI CORP., et al., appellants.

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

Nov. 30, 2010.

Stacy R. Seldin, New York, N.Y., for appellants.

Pontisakos & Rossi, P.C., Roslyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kelly, J.), dated April 22, 2010, which denied their 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).

ORDERED that the order is affirmed, with costs.

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 defendantsrelied on the affirmed medical report of Dr. Ashok Anant, their examining neurologist. During his examination of the plaintiff on February 27, 2009, Dr. Anant noted significant limitations in the range of motion ofthe plaintiff's lumbar spine ( see Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517; Mondevil v. Kumar, 74 A.D.3d 1295, 903 N.Y.S.2d 248; mith 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, 872 N.Y.S.2d 180; McGregor v. Avellaneda, 50 A.D.3d 749, 855 N.Y.S.2d 625; Wright v. AAA Constr. Servs., Inc., 49 A.D.3d 531, 855 N.Y.S.2d 149). While Dr. Anant stated that the plaintiff presented with "magnification of symptoms," and that the decreased ranges of motion noted by him in the lumbar region of the spine was "subjective," he failed to explain or substantiate those conclusions with any objective medical evidence ( see Reitz v. Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173; Bengaly v. Singh, 68 A.D.3d 1030, 890 N.Y.S.2d 352; Ortiz v. S & A Taxi Corp., 68 A.D.3d 734, 891 N.Y.S.2d 112).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact ( see Coscia v. 938 Trading...