| Giammanco v Valerio |
| 2008 NY Slip Op 00225 [47 AD3d 674] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Ellen Giammanco, Appellant, v Michael P. Valerio, Jr., etal., Respondents. |
—[*1] McCabe, Collins, McGeough & Fowler, Carle Place, N.Y. (Patrick M. Murphy of counsel),for respondent Michael P. Valerio, Jr. Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), forrespondent Frederick B. Santora.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated September 5, 2006, which granted thedefendants' separate motions for summary judgment dismissing the complaint insofar as assertedagainst each of them on the ground that she did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs, and the motions forsummary judgment dismissing the complaint insofar as asserted against the defendants aredenied.
Contrary to the Supreme Court's determination, the defendants failed to establish, on theirseparate motions for summary judgment, that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Tourev Avis Rent A Car Sys., 98 NY2d 345, 355 [2002]; McNulty v Buglino, 40 AD3d 591 [2007]; McLaughlin v Rizzo, 38 AD3d856 [2007]). In support of their separate motions for summary judgment, the defendantsrelied on essentially the same submissions, including the affirmed medical reports of theexamining [*2]orthopedist and neurologist of the defendantMichael Valerio, Jr. In the affirmed medical report of the examining orthopedist, he set forthlumbar spine range of motion findings, but failed to compare those findings to what is normal(see Malave v Basikov, 45 AD3d539 [2007]; Nociforo v Penna,42 AD3d 514, 515 [2007]; McNulty v Buglino, 40 AD3d at 592; Osgood v Martes, 39 AD3d 516[2007]; McLaughlin v Rizzo, 38 AD3d at 858), and in the process noted a significantlimitation in the plaintiff's lumbar rotation (see Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555[2007]; Zamaniyan v Vrabeck, 41AD3d 472, 473 [2007]). In the report of the examining neurologist, he concluded that theplaintiff had "full" range of motion in, inter alia, the cervical and lumbar regions of her spine, yetfailed to set forth the objective test or tests he performed to arrive at those conclusions (see Palladino v Antonelli, 40 AD3d944, 945 [2007]; McCrary vStreet, 34 AD3d 768, 769 [2006]; Nembhard v Delatorre, 16 AD3d 390, 391 [2005]).
Since the defendants failed to establish their respective prima facie entitlement to judgmentas a matter of law in the first instance, it is unnecessary to reach the question of whether theplaintiff's opposition papers were sufficient to raise a triable issue of fact (see Palladino vAntonelli, 40 AD3d at 945; McNulty v Buglino, 40 AD3d at 592; Coscia v 938Trading Corp., 283 AD2d 538 [2001]). Mastro, J.P., Santucci, Dillon and Angiolillo, JJ.,concur.