| Page v Belmonte |
| 2007 NY Slip Op 09379 [45 AD3d 825] |
| November 27, 2007 |
| Appellate Division, Second Department |
| Ardella Page, Appellant, v Heather Belmonte et al.,Respondents. |
—[*1] Wollerstein & Futoran (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D.Sweetbaum] of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated May 16, 2006, which granted the motion ofthe defendant Robert Perry for summary judgment dismissing the complaint insofar as assertedagainst him on the ground that she did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d), and upon, in effect, searching the record, granted summaryjudgment dismissing the complaint insofar as asserted against the defendant Heather Belmonteon that ground.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint insofar as asserted against the defendant Robert Perry isdenied, and so much of the order as upon, in effect, searching the record, granted summaryjudgment dismissing the complaint insofar as asserted against the defendant Heather Belmonte isvacated.
The plaintiff allegedly sustained injuries to her cervical and lumbar spines and both kneeswhen, as a pedestrian, she was struck by a motor vehicle owned by the defendant Robert Perryand operated by the defendant Heather Belmonte. After the plaintiff commenced this action torecover damages for the personal injuries she allegedly sustained in the accident, Perry moved forsummary judgment dismissing the complaint insofar as asserted against him on the ground thatthe plaintiff failed to satisfy the serious injury threshold set forth in Insurance Law § 5102(d).[*2]
Perry failed to establish, prima facie, that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Tchjevskaia v Chase, 15 AD3d389 [2005]). In his affirmed medical report following thoracic and lumbar range of motiontesting, Perry's examining orthopedic surgeon merely stated that forward bending was carried outto 80°, right to left lateral bending was "symmetrical at 20 degrees" and "[t]hese ranges ofmotion are considered excellent for a patient of the same age and body habitus." Nowhere werethese findings compared against what is normal range of motion (see Spektor v Dichy, 34 AD3d557, 558 [2006]). The physician's failure to set forth such a comparison requires denial ofthe motion (id.). Since Perry failed to satisfy his initial burden on his motion, it is notnecessary to consider whether the plaintiff's papers in opposition were sufficient to raise a triableissue of fact (see Tchjevskaia vChase, 15 AD3d 389 [2005]). Spolzino, J.P., Santucci, Skelos and Dickerson, JJ.,concur.