| Ayure v Afonso |
| 2008 NY Slip Op 51964(U) [21 Misc 3d 128(A)] |
| Decided on September 29, 2008 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas
D. Raffaele, J.), entered April 17, 2007. The order denied defendants' motion for partial summary
judgment dismissing plaintiff Luz Ayure's cause of action.
Order affirmed without costs.
In this action for damages for personal injuries arising from a motor vehicle accident, defendants moved for partial summary judgment on the ground that the injured plaintiff, Luz Ayure, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The injured plaintiff asserted that defendants failed to meet their prima facie burden. Although the court below found that defendants showed, prima facie, that Luz Ayure did not sustain a serious injury, the court denied defendants' motion for partial summary judgment on the ground that Luz Ayure raised a triable issue of fact. The instant appeal by defendants ensued.
Defendants failed to establish prima facie entitlement to judgment as a matter of
law since they failed to demonstrate that Luz Ayure 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 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]).
In support of their motion for summary judgment, defendants relied upon, inter alia, the affirmed
medical report of their [*2]orthopedist, who, based upon his
examination, identified limitations of ranges of motion in Luz Ayure's cervical and lumbar spine
(see Joseph v Hampton, 48 AD3d 638 [2008]; Zamaniyan v Vrabeck, 41 AD3d
472 [2007]). Thus, defendants failed to satisfy their prima facie burden of showing that Luz
Ayure did not suffer a serious injury (see Guzman v Joseph, 50 AD3d 741 [2008];
Giammanco v Valerio, 47 AD3d 674 [2008]). Consequently, defendants' motion should
have been denied without consideration of whether Luz Ayure's opposition papers were sufficient
to raise a triable issue of fact (see Sullivan v Illoge, 50 AD3d 886 [2008]; Coscia v
938 Trading Corp., 283 AD2d 538 [2001]).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: September 29, 2008