| O'Shea v Johnson |
| 2008 NY Slip Op 02121 [49 AD3d 614] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Thomas J. O'Shea et al., Respondents, v Brendan Johnson,Appellant. |
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In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby his brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), datedFebruary 27, 2007, as denied his motion for summary judgment dismissing the complaint on theground that neither of the plaintiffs sustained a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion which was for summary judgment dismissing the complaint insofar asasserted by the plaintiff Edith M. O'Shea and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, with coststo the defendant payable by the plaintiff Edith M. O'Shea.
The plaintiff Thomas J. O'Shea was operating a motor vehicle in which his wife, the plaintiffEdith M. O'Shea, was a passenger, when the vehicle was struck from behind by a motor vehicleoperated by the defendant. After the plaintiffs commenced this action, the defendant moved forsummary judgment dismissing the complaint on the ground that neither of the plaintiffs sustaineda serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident.
The affirmed medical report prepared by Dr. Loren E. Rosenthal, a neurologist, which thedefendant submitted in support of his motion insofar as it concerned Mr. O'Shea, failed toestablish, prima facie, that he did not sustain a serious injury (see Tchjevskaia v Chase, 15 AD3d 389 [2005]). Indeed, the reportactually identified a triable issue of fact (see CPLR 3212 [b]) as to whether Mr. O'Sheaexhibited significant limitations in cervical range of motion as a result of the accident(see Insurance [*2]Law § 5102 [d]). Under thesecircumstances, it is not necessary to consider the sufficiency of the plaintiffs' submissions withregard to Mr. O'Shea (see Tchjevskaia v Chase 15 AD3d at 389).
However, the affirmed medical report which Dr. Rosenthal prepared with regard to hisexamination of Mrs. O'Shea established, prima facie, that her injuries were not serious within thestatutory definition (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The affirmedmedical report prepared by Dr. Arnold Goran, which was submitted in opposition to the motioninsofar as it concerned Mrs. O'Shea, failed to raise a triable issue of fact. Dr. Goran found thatshe had full range of motion when he first examined her two months after the accident, and againalmost six months after the accident. While Dr. Goran found a 20% reduction in range of motionin Mrs. O'Shea's cervical spine nearly 18 months after the accident, he failed to causally relatethat limitation to the accident (see Verrelli v Tronolone, 230 AD2d 789 [1996]) or toexplain the apparent inconsistency in his findings (see Doran v Sequino, 17 AD3d 626, 627 [2005]). Accordingly, thecourt should have granted that branch of the defendant's motion which was for summaryjudgment dismissing the complaint insofar as asserted by Mrs. O'Shea on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d). Prudenti, P.J.,Miller, Dillon and McCarthy, JJ., concur.