| Powell v Prego |
| 2009 NY Slip Op 00667 [59 AD3d 417] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Richard Powell et al., Appellants, v Henrey Prego,Respondent. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), datedApril 23, 2007, as granted that branch of the defendant's motion which was for summaryjudgment dismissing the plaintiffs' claims for damages for personal injuries and loss of serviceson the ground that the plaintiff Richard Powell did not sustain a serious injury within themeaning of Insurance Law § 5102 (d), and denied, as academic, that branch of thedefendant's motion which was for summary judgment dismissing the complaint on the groundthat he was not liable for the accident.
Ordered that the appeal from so much of the order as denied, as academic, that branch of thedefendant's motion which was for summary judgment dismissing the complaint on the groundthat he was not liable for the accident is dismissed, as the plaintiffs are not aggrieved by thatportion of the order (see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, that branch of thedefendant's motion which was for summary judgment dismissing the plaintiffs' claims fordamages for personal injuries and loss of services on the ground that the plaintiff Richard Powelldid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) is denied,the claims are reinstated, and the matter is remitted to the Supreme Court, Suffolk County for adetermination of that branch of the defendant's motion which was for summary judgmentdismissing the complaint on the ground that he was not liable for the accident; and it is further,[*2]
Ordered that the plaintiffs are awarded one bill of costs.
On the afternoon of November 24, 2003 a pickup truck being operated by the plaintiffRichard Powell (hereinafter the injured plaintiff) collided with a motor vehicle being operated bythe defendant. After the injured plaintiff and his wife, suing derivately, commenced the presentaction, the defendant moved for summary judgment dismissing the complaint, inter alia, on theground that the injured plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d). Insofar as is relevant here, in addition to dismissing the plaintiffs' claimsfor economic damages exceeding the injured plaintiff's basic economic loss, the Supreme Court,in effect, dismissed the injured plaintiff's claims to recover damages for personal injuries, as wellas the plaintiff Michelle Powell's derivative claim to recover damages for loss of services. TheSupreme Court found that, in response to the defendant's showing that, as a matter of law, theinjured plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d), the plaintiffs offered insufficient proof to show the existence of a triable issue of fact.We reverse.
The defendant failed to establish, prima facie, that the injured plaintiff 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 [1992]; Cassandra vDumond, 31 AD3d 476 [2006]). The papers submitted by the defendant in support ofthe motion included the affirmed medical report of his examining orthopedist which showed theexistence of limitations in the range of motion of the injured plaintiff's cervical spine (seeCassandra v Dumond, 31 AD3d at 477). The bare conclusory opinion of the defendant'sorthopedist that the "[d]ecreased range of motion is due to degenerative changes that arepre-existing" was without probative value (see Moore v City of Yonkers, 54 AD3d 397 [2008]; Bennett v Genas, 27 AD3d 601[2006]). Since the defendant failed to establish his prima facie burden, it is unnecessary toconsider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact(see Tchjevskaia v Chase, 15 AD3d389 [2005]). Florio, J.P., Covello, Balkin and Leventhal, JJ., concur. [See 2007 NYSlip Op 31054(U).]