Smith v. Rodriguez

Although we affirm the order insofar as appealed from, we do so for reasons different from those relied upon by the Supreme Court. The appellants 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]). In support of their motion, the appellants relied on, inter alia, the affirmed medical report of Dr. Gregory Montalbano. Dr. Montalbano, the appellants’ examining…