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Lopez v. Felton

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


March 17, 2009

JULIO LOPEZ, RESPONDENT,
v.
LESTER FELTON, JR., ET AL., APPELLANTS.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated February 14, 2008, 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).

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, HOWARD MILLER, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Index No. 960/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

While we affirm the order appealed from, we do so on grounds different from those relied upon by the Supreme Court. 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the affirmed medical report of Dr. Michael R. Miller, their examining orthopedic surgeon. While Dr. Miller set forth range of motion findings for the plaintiff's left knee in his report, he failed to compare those findings to what is considered normal (see Perez v Fugon, 52 AD3d 668; Page v Belmonte, 45 AD3d 825, 825-826; Fleury v Benitez, 44 AD3d 996, 997). Furthermore, the defendants never proffered a report from any doctor who examined the plaintiff's right knee, which he alleged he injured as a result of the subject accident in his supplemental bill of particulars (see Sajid v Murzin, 52 AD3d 493; Monkhouse v Maven Limo, Inc., 44 AD3d 630; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Cai, 31 AD3d 385; Loadholt v New York City Tr. Auth., 12 AD3d 352).

Since the defendants 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 Sajid v Murzin, 52 AD3d 493).

RIVERA, J.P., DILLON, MILLER, BALKIN and LEVENTHAL, JJ., concur.

20090317

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