| McGregor v Avellaneda |
| 2008 NY Slip Op 03178 [50 AD3d 749] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Stacey McGregor, Appellant, v Caceres R. Avellaneda etal., Defendants and Third-Party Plaintiffs-Respondents. Donald A. Bleakley, Third-PartyDefendant-Respondent. |
—[*1] Cavallo & Cavallo, Bronx, N.Y. (Nesci Keane Piekarski Keogh & Corrigan [Jason M.Bernheimer] of counsel), for defendants third-party plaintiffs-respondents. Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Julie M. Sherwood of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Putnam County (O'Rourke, J.), dated March 13, 2007, which granted thedefendant's motion and that branch of the third-party defendant's motion which was for summaryjudgment dismissing the complaint on the ground that she did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d), and (2) an order of the same court dated May30, 2007, which denied her motion for leave to reargue.
Ordered that the order dated March 13, 2007 is reversed, on the law, the defendants' motionfor summary judgment dismissing the complaint and that branch of the third-party defendant'smotion which was for summary judgment dismissing the complaint are denied; and it is further,[*2]
Ordered that the appeal from the order dated May 30,2007 is dismissed, as no appeal lies from an order denying reargument, and, in any event, theappeal has been rendered academic in light of our determination of the appeal from the orderdated March 13, 2007; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the respondentsappearing separately and filing separate briefs.
The defendants and the third-party defendant (hereinafter the respondents) failed on theirseparate motions to satisfy their initial prima facie burdens of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In support of their motions, the respondents relied onthe affirmed medical report of the third-party defendant's examining neurologist Dr. Rene Elkin.In Dr. Elkin's report, which was based upon an examination that occurred more than three yearsafter the subject accident, Dr. Elkin noted significant range of motion limitations in the plaintiff'sleft shoulder (see Zamaniyan vVrabeck, 41 AD3d 472 [2007]; Sullivan v Johnson, 40 AD3d 624 [2007]; Smith v Delcore, 29 AD3d 890[2006]; Sano v Gorelik, 24 AD3d747 [2005]; Spuhler v Khan, 14AD3d 693 [2005]; Omar vBello, 13 AD3d 430 [2004]; Scotti v Boutureira, 8 AD3d 652 [2004]). Since the respondentsfailed to establish their prima facie entitlement to judgment as a matter of law in the firstinstance, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient toraise a triable issue of fact (seeZamaniyan v Vrabeck, 41 AD3d 472 [2007]; Sullivan v Johnson, 40 AD3d 624 [2007]). Rivera, J.P., Lifson,Miller, Carni and Eng, JJ., concur.