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Guerrero v. Bernstein

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 23, 2008

JOSE GUERRERO, ET AL., RESPONDENTS,
v.
RANDY BERNSTEIN, ET AL., APPELLANTS.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (R. Doyle, J.), entered December 24, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Jose Guerrero did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., MARK C. DILLON, EDWARD D. CARNI and JOHN M. LEVENTHAL, JJ.

(Index No. 1018/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The defendants failed to meet their prima facie burden of showing that the plaintiff Jose Guerrero (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of the defendants' motion, they relied upon, inter alia, the medical reports of the injured plaintiff's treating physicians. Those reports revealed the existence of significant limitations of motion in the cervical and thoracic regions of the injured plaintiff's spinal column (see Mendola v Demetres, 212 AD2d 515).

Since the defendants did not meet their prima facie burden, it is unnecessary to decide whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

SKELOS, J.P., DILLON, CARNI and LEVENTHAL, JJ., concur.

20081223

© 1992-2008 VersusLaw Inc.



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