Opinion
2012-04-10
Walter J. STARKEY, et al., appellants, v. Thomas F. CURRY, respondent.
Pamela Gabiger, Poughkeepsie, N.Y., for appellants. Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Yonkers, N.Y. (E. Richard Vieira of counsel), for respondent.
Pamela Gabiger, Poughkeepsie, N.Y., for appellants. Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Yonkers, N.Y. (E. Richard Vieira of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated July 29, 2011, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Walter J. Starkey did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The Supreme Court erred in determining that the defendant made a prima facie showing that the plaintiff Walter J. Starkey (hereinafter the injured 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 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). In support of his motion, the defendant relied upon, among other things, affirmed medical reports of Dr. Robert C. Hendler, the defendant's examining orthopedist, who set forth in his December 16, 2010, report, based upon his examination of the injured plaintiff on December 14, 2010, the range-of-motion findings with respect to the cervical and lumbar regions of the injured plaintiff's spine and his shoulders, but failed to compare those findings to what is normal ( see Ambroselli v. Team Massapequa, Inc., 88 A.D.3d 927, 928, 931 N.Y.S.2d 652; Grisales v. City of New York, 85 A.D.3d 964, 965, 925 N.Y.S.2d 633; Levin v. Khan, 73 A.D.3d 991, 904 N.Y.S.2d 73; Page v. Belmonte, 45 A.D.3d 825, 846 N.Y.S.2d 351).
Since the defendant failed to meet his prima facie burden, it is unnecessary to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact ( see Page v. Belmonte, 45 A.D.3d 825, 846 N.Y.S.2d 351; Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.