Opinion
2011-10-18
John P. WALTER, etc., respondent,v.Robert WALCH, et al., appellants.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Anne Marie Garcia and Harold A. Campbell of counsel), for appellants.Shulman Kessler, LLP, Melville, N.Y. (Steven Shulman of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated September 20, 2010, as denied their cross motion for summary judgment dismissing the complaint on the ground that the infant, Paige Gildard, did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants, on their cross motion for summary judgment, failed to meet their prima facie burden of showing that the plaintiff's infant stepdaughter, Paige Gildard (hereinafter the infant), 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged, inter alia, that the infant sustained certain injuries to the cervical region of her spine as a result of the subject accident. Although the defendants asserted that those alleged injuries did not
constitute serious injuries within the meaning of Insurance Law § 5102(d) ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d at 955–956, 582 N.Y.S.2d 990, 591 N.E.2d 1176), the defendants' examining orthopedic surgeon recounted, in his affirmed report submitted in support of the cross motion, that the range-of-motion testing he performed during his examination revealed the existence of a significant limitation of motion in the region ( see Cues v. Tavarone, 85 A.D.3d 846, 925 N.Y.S.2d 346).
Since the defendants failed to meet their prima facie burden on their cross motion for summary judgment, their cross motion was properly denied without considering whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact ( id. at 846, 925 N.Y.S.2d 346).
DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.