| Gibson-Wallace v Dalessandro |
| 2009 NY Slip Op 00341 [58 AD3d 679] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Dale Gibson-Wallace, Appellant, et al., Plaintiff, v RobertJ. Dalessandro et al., Respondents. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill ofcounsel), for respondent Robert J. Dalessandro. DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), forrespondent Chase Manhattan Automotive Finance Corporation.
In an action to recover damages for personal injuries, the plaintiff Dale Gibson-Wallaceappeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County(Brandveen, J.), entered June 29, 2007, as granted those branches of the respective motions ofthe defendants which were for summary judgment dismissing the complaint insofar as assertedby her against them on the ground that she did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable to the plaintiff Dale Gibson-Wallace, and those branches of the defendants' separatemotions which were for summary judgment dismissing the complaint insofar as asserted by theplaintiff Dale Gibson-Wallace against them on the ground that she did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) are denied.[*2]
The Supreme Court erred in finding that, on theirrespective motions, each of the defendants met their prima facie burden with respect to theplaintiff Dale Gibson-Wallace (hereinafter the appellant) by showing that she did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]). In support of their separate motions, both defendants reliedupon the affirmed medical report of Dr. Vartkes Khachadurian, an orthopedic surgeon, whonoted, during cervical spine testing on June 14, 2006, that the appellant was able to forward flexto 60 degrees in the cervical spine, but failed to adequately compare that finding to the normalrange he provided (see generallyBarrera v MTA Long Is. Bus, 52 AD3d 446 [2008]). In this respect, Dr. Khachaduriannoted that "chin to the chest" was normal for cervical forward flexion, but failed to correlate thatto his finding that the appellant was able to forward flex to 60 degrees.
The defendant Robert J. Dalessandro further relied on the affirmed medical report of Dr.Matthew Chacko, a neurologist, who noted significant limitations in the appellant's cervical andlumbar spine ranges of motion based upon his examination that took place more than two yearsafter the subject accident occurred (seeHurtte v Budget Roadside Care, 54 AD3d 362 [2008]; Perry v Brusini, 53 AD3d 478[2008]; Moorer v Amboy Bus Co., Inc.,52 AD3d 587 [2008]).
Since the defendants did not meet their prima facie burdens of establishing their entitlementto judgment as a matter of law, we need not address the question of whether the papers submittedby the appellant were sufficient to raise a triable issue of fact (see Coscia v 938 TradingCorp., 283 AD2d 538 [2001]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ.,concur.