| Wright v AAA Constr. Servs., Inc. |
| 2008 NY Slip Op 01944 [49 AD3d 531] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Christine Wright, Appellant, v AAA ConstructionServices, Inc., et al., Respondents. |
—[*1] Purcell & Ingrao, P.C., Mineola, N.Y. (Terrance J. Ingrao and Matthew M. Frank ofcounsel), for respondents AAA Construction Services, Inc., and Natanahel Barreira.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Kelly, J.), dated January 12, 2007, which granted the motionof the defendants AAA Construction Services, Inc., and Natanahel Barreira, and the separatemotion of the defendants Jean Labranche and Jimward J. Labranche for summary judgmentdismissing the complaint insofar as asserted against them on the ground that she did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motions forsummary judgment dismissing the complaint insofar as asserted against them are denied.
The Supreme Court erred in concluding that the defendants satisfied their respective primafacie burdens on their separate motions for summary judgment by showing that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955, 956-957 [1992]). In support of their motions, the defendants relied onessentially the same submissions. Included within those submissions was the affirmed medicalreport of their examining orthopedic surgeon, who noted significant range of motion limitationsin the plaintiff's left shoulder upon examination two years post-accident (see Zamaniyan v Vrabeck, 41 AD3d472 [2007]; Sullivan vJohnson, 40 AD3d 624 [2007]; Smith v Delcore, 29 AD3d 890 [2006]; Sano v Gorelik, 24 AD3d 747[2005]; Spuhler v Khan, 14 AD3d693 [2005]; Omar v Bello, 13AD3d 430 [2004]; Scotti vBoutureira, 8 AD3d 652 [2004]). Accordingly, the defendants failed [*2]to establish their prima facie entitlement to judgment as a matter oflaw in the first instance, and it is unnecessary to reach the question of whether the plaintiff'sopposition papers were sufficient to raise a triable issue of fact (see Zamaniyan v Vrabeck, 41 AD3d472 [2007]; Sullivan vJohnson, 40 AD3d 624 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.