| Colacino v Andrews |
| 2008 NY Slip Op 02950 [50 AD3d 615] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Deborah Colacino et al., Appellants, v Wendy P. Andrewset al., Respondents. |
—[*1] Bryan M. Rothenberg (Fiedelman & McGaw, Jericho, N.Y. [Dawn C. DeSimone] ofcounsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy,J.), dated March 14, 2007, as granted the defendants' motion for summary judgment dismissingthe complaint on the ground that the plaintiff Deborah Colacino did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion for summary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of showing that the plaintiff DeborahColacino (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Insupport of their motion, the defendants relied on the reports of the injured plaintiff's treatingphysicians, which noted the existence of limitations in the range of motion in her lumbar andcervical spine. These reports, however, did not sufficiently quantify or qualify the limitations inrange of motion so as to establish that they were insignificant (see Doherty v Galla, 46 AD3d 610[2007]; Dzaferovic v Polonia, 36AD3d 652 [2007]; Whittaker vWebster Trucking Corp., 33 AD3d 613 [2006]). Moreover, the defendants failed toadequately address the injured [*2]plaintiff's claim, set forth inher bill of particulars, that, as a result of the accident, she was unable to perform substantially allof the material acts which constituted her usual and customary daily activities for a period of 90days during the 180 days immediately following the accident (see Greenidge v Righton Limo, Inc., 43 AD3d 1109 [2007]; Kouros v Mendez, 41 AD3d 786[2007]; DeVille v Barry, 41 AD3d763 [2007]; Torres v PerformanceAuto. Group, Inc., 36 AD3d 894 [2007]). The accident occurred on March 7, 2004. Theinjured plaintiff alleged in her bill of particulars that she was incapacitated from her employmentfor a period of 219 days as a result of the accident, and the defendants' examining neurologistnoted in his report that she missed six months of work. The defendants' examining neurologistdid not examine the injured plaintiff until September 12, 2006, 2½ years after the accident,and did not relate his medical findings to this category of serious injury for the period of timeimmediately following the accident.
Since the defendants failed to satisfy their prima facie burden, it is unnecessary to considerwhether the opposition papers were sufficient to raise a triable issue of fact (see Doherty v Galla, 46 AD3d 610[2007]; Greenidge v Righton Limo, Inc.,43 AD3d 1109 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.