| Fleury v Benitez |
| 2007 NY Slip Op 08182 [44 AD3d 996] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Lucienne Fleury, Appellant, v Nelson M. Benitez et al.,Respondents. |
—[*1] Richard T. Lau, Jericho, N.Y. (Nancy S. Goodman of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Suffolk County (Doyle, J.), dated December 13, 2005, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) ajudgment of the same court entered January 8, 2007, which, upon the order, is in favor of thedefendants and against her dismissing the complaint. The notice of appeal from the order isdeemed also to be a notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendants' motion for summaryjudgment is denied, the complaint is reinstated, and the order is modified accordingly; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d [*2]241, 248 [1976]). The issues raised on the appeal fromthe order are brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The defendants failed to establish, prima facie, that the plaintiff did not sustain a seriousinjury 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, 79NY2d 955 [1992]). In support of their motion, the defendants relied upon, inter alia, the affirmedmedical reports of two orthopedists. Both orthopedists examined the cervical region of theplaintiff's spine, and one of the orthopedists also examined the lumbar region of the plaintiff'sspine. In their respective affirmed medical reports, the orthopedists set forth their findings basedon range of motion testing of the plaintiff. However, the orthopedists failed to compare thosefindings to the normal ranges of motion (see Hypolite v International Logistics Mgt., Inc.,43 AD3d 461 [2007]; Somers v Macpherson, 40 AD3d 742, 743 [2007]; McNulty vBuglino, 40 AD3d 591, 592 [2007]; Osgood v Martes, 39 AD3d 516 [2007];McLaughlin v Rizzo, 38 AD3d 856, 857 [2007]; Aronov v Leybovich, 3 AD3d511, 512 [2004]).
Since the defendants failed to establish their prima facie entitlement to judgment as a matterof law, it is unnecessary to consider whether the plaintiff's papers submitted in opposition to themotion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp.,283 AD2d 538 [2001]). Rivera, J.P., Krausman, Florio, Carni and Balkin, JJ., concur.