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LISA McDOWALL, Respondent, v. DIONICIO ABREU et al., Appellants.

Ordered that the order is affirmed, with one bill of costs.

Where a defendant fails to meet his or her initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury, "it is not necessary to consider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact" ( Coscia v. 938 Trading Corp., 283 AD2d 538; see Chaplin v. Taylor, 273 AD2d 188; Mariaca-Olmos v. Mizrhy, 226 AD2d 437; see also Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). The defendants' examining doctor found that the plaintiff continued to have restrictions in motion of her lower back approximately 1½ years after the accident. In light of this finding by the defendants' expert, the defendants did not meet their initial burdens on their separate motions ( see Meyer v. Gallardo, 260 AD2d 556, 557; Cesar v. Felix, 181 AD2d 852, 853).

Accordingly, the Supreme Court properly denied the defendants' separate motions for summary judgment dismissing the complaint.

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McDOWALL v. ABREU
(Oct 18, 2004)