Robinson v Yeager, 2009 NY Slip Op 03710 (App. Div., 2nd, 2009)
The defendant failed to meet his 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 his motion, the defendant relied
upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell and
Dr. Rene Elkin. In those reports, Dr. Elkin noted significant
limitation in the plaintiff's cervical spine, and Dr. Purcell noted
significant limitation in the plaintiff's right shoulder (see Giacomaro v Wilson, 58 AD3d 802; Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472).
Since the defendant failed to meet his prima facie burden, it is
unnecessary to decide whether the papers submitted by the plaintiff in
opposition were sufficient to raise a triable issue of fact (see Giacomaro v Wilson, 58 AD3d 802; Coscia v 938 Trading Corp., 283 AD2d 538).
The bold is mine.
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