| Giacomaro v Wilson |
| 2009 NY Slip Op 00504 [58 AD3d 802] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Carol A. Giacomaro, Appellant, v Ralph R. Wilson et al.,Respondents. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill ofcounsel), for respondent Ralph R. Wilson. Epstein, Rayhill & Frankini, Woodbury, N.Y. (Michael Callari III of counsel), forrespondents Brian J. Scelfo and Mark S. Scelfo.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Parga, J.), entered December 14, 2007, which granted themotion of the defendant Ralph R. Wilson and the separate motion of the defendants Brian J.Scelfo and Mark S. Scelfo for summary judgment dismissing the complaint insofar as assertedagainst them on the ground that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs payable to the plaintiff,and the motion of the defendant Ralph R. Wilson and the separate motion of the defendantsBrian J. Scelfo and Mark S. Scelfo for summary judgment dismissing the complaint insofar asasserted against them are denied.
The Supreme Court erred in determining that the defendants met their prima facie burdens ofshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Here, thedefendants, who submitted the same evidence in support [*2]oftheir respective motions, relied, inter alia, on the affirmed medical report of Dr. VartkesKhachadurian. That doctor, an orthopedic surgeon, examined the plaintiff on April 11, 2007, andnoted in his report a significant limitation in the range of motion of the plaintiff's right shoulder(see Hurtte v Budget Roadside Care,54 AD3d 362 [2008]; Perry vBrusini, 53 AD3d 478 [2008]; Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555[2007]; Zamaniyan v Vrabeck, 41AD3d 472 [2007]). Since the defendants failed to meet their respective prima facie burdens,it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise atriable issue of fact (see Hurtte vBudget Roadside Care, 54 AD3d 362 [2008]; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Spolzino, J.P., Covello, McCarthy and Belen, JJ., concur.