India v. O'Connor

Contrary to the Supreme Court’s determination, 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 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). The defendants contended, inter alia, that the alleged injuries to the lumbar region of the plaintiffs spine did not constitute serious injuries within the meaning of Insurance Law § 5102 (d). However, the defendants’ examining orthopedic surgeon recounted, in an affirmed report submitted in support of the defendants’ motion for summary judgment dismissing the complaint, that range-of-motion testing performed during the examination revealed a significant limitation of motion in the lumbar region of the plaintiffs spine (see Scott v Gresio, 90 AD3d 736 , 737 [2011]; Nelms v Khokhar, 12 AD3d 426 , 427 [2004]). Further, the defendants’ orthopedic surgeon failed to adequately explain and substantiate his belief that the limitation of motion in the lumbar region of the plaintiff’s spine was self-imposed (cf. Perl v Meher, 18 NY3d 208 , 219 [2011]; Gonzales v Fiallo, 47 AD3d 760 [2008]).

Since the defendants failed to meet their prima facie burden of demonstrating that the plaintiff did not sustain a serious