| Morales v Theagene |
| 2007 NY Slip Op 10120 [46 AD3d 775] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Sandra Morales et al., Appellants, v Jeffrey T. Theagene etal., Respondents. |
—[*1] Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa L. Gokhulsingh of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), datedSeptember 18, 2006, as granted those branches of the defendants' motion which were forsummary judgment dismissing the complaint as to each of the plaintiffs on the ground that noneof them sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the motion which were for summary judgment dismissing the complaintinsofar as asserted by the plaintiffs Sandra Morales, in her individual capacity, and Jade Moraleson the ground that they did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and substituting therefor a provision denying those branches of the defendants'motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costspayable to the plaintiffs Sandra Morales, in her individual capacity, and Jade Morales, and thematter is remitted to the Supreme Court, Suffolk County, for a determination on the merits of thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted by the plaintiffs Sandra Morales, in her individual capacity, and Jade Moraleson the ground that the defendants are not negligent.
The defendants met their prima facie burden of establishing that the plaintiffs Jade Morales(hereinafter Jade) and Keith Morales (hereinafter Keith) did not sustain serious injuries withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident, but failed tomeet [*2]that burden with respect to the plaintiff Sandra Moralesin her individual capacity (hereinafter Sandra) (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants'examining neurologist noted in his report significant range of motion limitations in both thecervical and lumbar regions of Sandra's spine (see Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555[2007]; Zamaniyan v Vrabeck, 41AD3d 472 [2007]). Since the defendants failed to establish their prima facie burden withrespect to Sandra, it was unnecessary for the Supreme Court to consider whether her paperssubmitted in opposition to the defendants' motion were sufficient to raise a triable issue of fact(see Ayotte v Gervasio, 81 NY2d 1062 [1993]; Coscia v 938 Trading Corp., 283AD2d 538 [2001]).
The Supreme Court properly determined that the plaintiffs' submissions in opposition failedto raise a triable issue of fact as to whether Keith sustained a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident. While the plaintiffs' treatingchiropractor concluded that Keith sustained a significant limitation of use to his lumbar spine asa result of the subject accident, his conclusions were not based on a recent examination (see Ali v Mirshah, 41 AD3d 748[2007]; Mejia v DeRose, 35 AD3d407 [2006]).
The affidavit of the plaintiffs' treating chiropractor raised a triable issue of fact as to whetherJade sustained a serious injury within the meaning of Insurance Law § 5102 (d). Heconcluded that Jade sustained a significant limitation of use of her lumbar spine as a result of thesubject accident. In his affidavit, he set forth significant range of motion limitations in Jade'slumbar spine based on an examination that was performed contemporaneously with the subjectaccident, and found similar significant lumbar range of motion limitations roughly three yearslater during a recent examination (seeGreen v Nara Car & Limo, Inc., 42 AD3d 430 [2007]; Acosta v Rubin, 2 AD3d 657[2003]; Rosado v Martinez, 289 AD2d 386 [2001]; Vitale v Lev Express CabCorp., 273 AD2d 225 [2000]). Contrary to the contentions of the defendants, there was nolengthy gap in Jade's treatment. The plaintiffs' treating chiropractor stated in his affidavit thatJade was treated by him on a regular and continuous basis from his initial treatment date with heron May 12, 2003.
To the extent that the defendants raise an issue with respect to that branch of their motionwhich was for summary judgment dismissing the complaint insofar as asserted by the plaintiffsSandra Morales, in her individual capacity, and Jade Morales on the ground that the defendantswere not negligent, we note that the subject branch of the motion was never decided by theSupreme Court on the merits. Therefore, we remit the matter to the Supreme Court for adetermination on the merits of that branch of the defendants' motion. Crane, J.P., Ritter, Fisher,Covello and Dickerson, JJ., concur.