| Geliga v Karibian, Inc. |
| 2008 NY Slip Op 08703 [56 AD3d 518] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Christopher Geliga et al., Respondents, et al.,Plaintiffs, v Karibian, Inc., et al., Appellants. |
—[*1] The Yankowitz Law Firm, P.C., Great Neck, N.Y. (Robert P. Baquet of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Ambrosio, J.),dated November 26, 2007, as denied those branches of their motion which were for summaryjudgment dismissing the complaint insofar as asserted by the plaintiffs Christopher Geliga,Lionel Alicea, and Cecilia Cienfuegos on the ground that none of those plaintiffs sustained aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendants' motion which were for summary judgment dismissing thecomplaint insofar as asserted by the plaintiffs Christopher Galiga and Lionel Alicea andsubstituting therefor provisions granting those branches of the motion; as so modified, the orderis affirmed insofar as appealed from, with costs to the defendants.
The plaintiffs Lionel Alicea and Cecilia Cienfuegos, among others, were passengers in amotor vehicle operated by the plaintiff Christopher Galiga, when it was involved in an accidentwith the defendants' vehicle. After the instant action was commenced, the defendants moved forsummary judgment, inter alia, dismissing the complaint insofar as asserted by Alicea,Cienfuegos, and Galiga (hereinafter collectively the plaintiffs) on the ground that none of theplaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).
The defendants established, prima facie, that the plaintiffs' injuries were not serious throughthe submission, inter alia, of the affirmed medical reports of the defendants' retained expert [*2]orthopedist and expert neurologist, who examined the plaintiffs andconcluded that the injuries did not fall within any of the statutory categories of serious injury(see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79NY2d 955, 956-957 [1992]). In opposition to the defendants' showing, Geliga and Alicea failedto raise a triable issue of fact, but Cienfuegos did.
Each of the plaintiffs' alleged injuries concededly did not prevent them from performing"substantially all" of the material acts constituting their customary daily activities during at least90 out of the first 180 days following the accident (see Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d664, 665 [2008]). In particular, Geliga acknowledged at his deposition that he missedapproximately one month of work as a result of the subject accident, while Alicea acknowledgedat his deposition that he did not miss any work as a result of the accident. At her deposition,Cienfuegos acknowledged that she did not miss any school as a result of the accident.
Moreover, in his affidavit, Emil Stracar, the plaintiffs' treating physician, noted that bothGeliga and Alicea had been involved in prior motor vehicle accidents. Rather than address thoseaccidents, Stracar simply concluded that the significant range-of-motion limitations in theseplaintiffs' cervical and lumbar spines, as well as the injuries noted in these plaintiffs' magneticresonance imaging reports, were the result of the subject accident. "These conclusions wereclearly rendered speculative in light of the fact that he failed to address what those prior accidentsinvolved" (Pazmino v UniversalDistribs., LLC, 45 AD3d 554, 555 [2007]; see Tudisco v James, 28 AD3d 536 [2006]; Allyn v Hanley, 2 AD3d 470, 471[2003]).
Cienfuegos, however, was not involved in a prior accident. Stracar's affidavit, which wassubmitted on behalf of Cienfuegos in opposition to the defendants' motion, raised a triable issueof fact as to whether she sustained a "significant limitation" of use of a body function or systemas a result of the accident (see Insurance Law § 5102 [d]). Stracar's opinion wasbased upon objective and quantified range-of-motion data obtained through the use of aninclinometer, reflecting the extent of restricted cervical and lumbar flexion and extension ascompared to the norm (see Garner vTong, 27 AD3d 401 [2006]; Kraemer v Henning, 237 AD2d 492, 493 [1997]).
The defendants' remaining contentions either are without merit or have been renderedacademic in light of our determination. Prudenti, P.J., Mastro, Fisher and Dillon, JJ., concur.