| Johnson v County of Suffolk |
| 2008 NY Slip Op 08295 [55 AD3d 875] |
| October 28, 2008 |
| Appellate Division, Second Department |
| George Johnson et al., Respondents, v County of Suffolk et al.,Appellants, and On Time Auto Parts, LLC, et al., Respondents. (Appeal No. 1.) George Johnson etal., Respondents, v County of Suffolk et al., Appellants, and On Time Auto Parts, LLC, et al.,Defendants. (Appeal No. 2.) |
—[*1] Siben & Siben LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for plaintiffs-respondents inappeal No. 1 and respondents in appeal No. 2. MacKay, Wrynn & Brady, LLP, Douglaston, N.Y. (Austin P. Murphy, Jr., of counsel), fordefendants-respondents in appeal No. 1.
In an action to recover damages for personal injuries, etc., the defendants County of Suffolk andMiguel Vasquez appeal, as limited by their brief, from so much of (1) an order of the Supreme Court,Suffolk County (R. Doyle, J.), dated June 7, 2007, as denied their motion for summary judgmentdismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffsGeorge Johnson and Richard Johnson sustained a serious injury within the meaning of Insurance Law§ 5102 (d) and granted that branch of the cross motion of the defendants On Time Auto Parts,LLC, and Michael Toscano which was for summary judgment dismissing the complaint [*2]and all cross claims insofar as asserted against them, and (2) an order ofthe same court dated November 19, 2007, as, upon reargument, adhered so much of to its originaldetermination as denied their motion for summary judgment.
Ordered that the appeal from so much of the order dated June 7, 2007, as denied the appellants'motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffsGeorge Johnson and Richard Johnson sustained a serious injury within the meaning of Insurance Law§ 5102 (d), is dismissed, as that order was superseded by the order dated November 19, 2007,made upon reargument; and it is further,
Ordered that the order dated November 19, 2007, is reversed insofar as appealed from, on thelaw, upon reargument, so much of the order dated June 7, 2007, as denied the appellants' motion forsummary judgment dismissing the complaint insofar as asserted against them on the ground that neitherof the plaintiffs George Johnson and Richard Johnson sustained a serious injury within the meaning ofInsurance Law § 5102 (d) is vacated, and the appellants' motion for summary judgment isgranted; and it is further,
Ordered that the appeal from so much of the order dated June 7, 2007, as granted the crossmotion of the defendants On Time Auto Parts, LLC, and Michael Toscano, is dismissed as academic inlight of our determination of the appeal from the order dated November 19, 2007; and it is further,
Ordered that one bill of costs is awarded to the appellants, payable by the plaintiffs.
During a snowstorm on the afternoon of April 7, 2003, a bus owned by the defendant County ofSuffolk and operated by the defendant Miguel Vasquez (hereinafter together the appellants) struck therear portion of a station wagon owned by the defendant On Time Auto Parts, LLC, and operated bythe defendant Michael Toscano, in the eastbound roadway of Montauk Highway, in the Town of Islip.As a result of that collision, the station wagon was propelled into the westbound roadway and into avehicle operated by the plaintiff George Johnson (hereinafter George), in which his son, the plaintiffRichard Johnson (hereinafter Richard), was a passenger. The plaintiffs, including George's wife, whoasserted a derivative claim, thereafter commenced this action and, inter alia, the appellants moved forsummary judgment dismissing the complaint insofar as asserted against them on the ground that neitherGeorge nor Richard sustained a serious injury within the meaning of Insurance Law § 5102 (d).
The appellants established a prima facie case that neither George nor Richard sustained a seriousinjury within the meaning of Insurance Law § 5102 (d), through the affirmed reports oforthopedic surgeon Joseph L. Paul, who examined both of them approximately two months after theaccident and found that range of motion was normal in various operations of George's cervical spineand Richard's lumbar spine (see Toure v Avis Rent a Car Sys., 98 NY2d 345, 352 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Dr. Paul further concluded that neitherGeorge nor Richard had sustained a disability. "A defendant who submits admissible proof that theplaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to themotor vehicle accident, has established a prima facie case that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d), despite the existence of an MRI whichshows herniated or bulging discs" (Kearse vNew York City Tr. Auth., 16 AD3d 45, 49-50 [2005]). The medical evidence which theplaintiffs submitted in opposition failed to raise a triable issue of fact (see CPLR [*3]3212 [b]). Notably, the restrictions of motion found by George andRichard's treating chiropractor, Dennis J. DaSilva, were not based on a recent examination (see Amato v Fast Repair Inc., 42 AD3d477, 478 [2007]). Indeed, Dr. DaSilva indicated that his treatment of George and Richardterminated approximately 75 days after the accident and that he did not subsequently examine either ofthem.
Accordingly, the Supreme Court should have granted the appellants' motion for summaryjudgment. Santucci, J.P., Dillon, Dickerson and Chambers, JJ., concur.