| Doherty v Galla |
| 2007 NY Slip Op 09721 [46 AD3d 610] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Lisa Doherty et al., Appellants, v Brian J. Galla et al.,Respondents. |
—[*1] Connors & Connors, P.C., Staten Island, N.Y. (Robert J. Pfuhler of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Doyle, J.), dated August 24, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Lisa Doherty did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to establish their primafacie entitlement to judgment as a matter of law by demonstrating that the plaintiff Lisa Dohertydid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a resultof the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The report of the defendants' examiningneurologist noted the existence of a limitation in the range of motion of the injured plaintiff'slumbar spine that was not adequately quantified or qualified so as to establish that it wasinsignificant (see Dzaferovic v Polonia,36 AD3d 652, 653 [2007]; Ilesv Jonat, 35 AD3d 537, 538 [2006]; Whittaker v Webster Trucking Corp., 33 AD3d 613 [2006]). Theaffirmed medical report of the defendants' examining orthopedic surgeon set forth range ofmotion findings with respect to the injured plaintiff's lumbar spine, but failed to compare thosefindings to [*2]what is deemed normal (see Hypolite v International Logistics Mgt.,Inc., 43 AD3d 461 [2007]; McNulty v Buglino, 40 AD3d 591, 592 [2007]; Osgood v Martes, 39 AD3d 516[2007]; McLaughlin v Rizzo, 38AD3d 856, 857 [2007]; Bluth vWorldOmni Fin. Corp., 38 AD3d 817, 818 [2007]). Since the defendants failed tosatisfy their burden on this motion, it is unnecessary to consider whether the plaintiffs'submissions raised a triable issue of fact (see Dzaferovic v Polonia, 36 AD3d at 653; Hypolite v International Logistics Mgt.,Inc., 43 AD3d 461 [2007]; McNulty v Buglino, 40 AD3d at 592; Coscia v938 Trading Corp., 283 AD2d 538 [2001]). Schmidt, J.P., Spolzino, Skelos and McCarthy,JJ., concur.