Majority
In an action to recover damages for personal injuries, the defendants Fookie Hacking Corporation and Asif Nazir appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 3, 2005, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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.
While we affirm the order appealed from, we do so on grounds other than those relied upon by the Supreme Court. The defendants Fookie Hacking Corporation and Asif Nazir (hereinafter the defendants) failed to establish prima facie 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 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In his affirmed medical report, the defendants’ examining orthopedist conceded the existence of limitations in the plaintiffs lumbar spine range of motion based on his examination of the plaintiff as well as the existence of a causal relationship between the subject accident and the
Cases cited
- Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 p. 430
- Museau v. New York City Transit Authority 34 AD3d 772 p. 431
- Smith v. Delcore 29 AD3d 890 p. 431
- Sano v. Gorelik 24 AD3d 747 p. 431
- Spuhler v. Khan 14 AD3d 693 p. 431
- Omar v. Bello 13 AD3d 430 p. 431