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McFadden v. Barry

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


June 30, 2009

SHAKEELAH MCFADDEN, ETC., ET AL., RESPONDENTS,
v.
ALPHA BARRY, ET AL., APPELLANTS.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated October 23, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Shakeelah McFadden 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.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, HOWARD MILLER, THOMAS A. DICKERSON and CHERYL E. CHAMBERS, JJ.

(Index No. 16601/05)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The defendants failed to meet their prima facie burden of showing that the injured 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 their bill of particulars, the plaintiffs clearly set forth their allegation that the injured plaintiff had sustained injuries to the lumbar region of her spine. The defendants' examining neurologist and orthopedist, however, both failed to address whether there were any limitations in the injured plaintiff's range of motion in the rotation of her lumbar spine. Under the circumstances of this case, given that omission, the Supreme Court properly concluded that the defendants failed to meet their burden of establishing, prima facie, that the injured plaintiff had not sustained a serious injury (see Staubitz v Yaser, 41 AD3d 698, 699). Inasmuch as the defendants did not meet their prima facie burden, it is unnecessary to consider the sufficiency of the plaintiffs' papers in opposition (see Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814; Ali v Rivera, 52 AD3d 445, 446).

MASTRO, J.P., FISHER, MILLER, DICKERSON and CHAMBERS, JJ., concur.

20090630

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