| Marshak v Migliore |
| 2009 NY Slip Op 01624 [60 AD3d 647] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 29—Mark A. Marshak et al., Appellants, v CharlesV. Migliore et al., Respondents. |
—[*1] John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Spinola, J.), dated September 19, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Mark A. Marshak did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The Supreme Court erred in concluding that the defendants met their prima facie burden ofshowing that the plaintiff Mark A. Marshak (hereinafter 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, 350-351 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In support of their motion, the defendants reliedupon, inter alia, the affirmed medical report of their examining orthopedic surgeon, Dr. MauroM. Cataletto, dated November 29, 2006. In this report, while Dr. Cataletto set forthrange-of-motion findings with respect to the injured plaintiff's lumbar spine as of November 29,2006, he failed to compare those findings to what is normal (see Perez v Fugon, 52 AD3d 668, 669 [2008]; Page v Belmonte, 45 AD3d 825,825-26 [2007]; Fleury v Benitez, 44AD3d 996, 997 [2007]). Moreover, when he set forth the injured plaintiff's supine straightleg raising findings he noted that the injured plaintiff could raise his right leg to 80 degrees andhis left leg to only 60 degrees. This noted a clear limitation, the full extent of which is unknownsince he failed to compare any of his range of motion findings to what is normal (see Gaccione v Krebs, 53 AD3d524, 525 [2008]; Giammanco vValerio, 47 AD3d 674, 675 [2008]; Coburn v Samuel, 44 AD3d 698, 699 [2007]; Iles v Jonat, 35 AD3d 537, 538[2006]; McCrary v Street, 34 AD3d768, 769 [2006]; Whittaker vWebster Trucking Corp., 33 AD3d 613 [2006]; Yashayev v Rodriguez, 28 AD3d 651, 652 [2006]). Absent suchcomparative quantification, the Court cannot conclude that the decreased lumbar range of motionnoted was mild, minor, or slight so as to be considered insignificant within the meaning of theno-fault statute (see Webb v KeyspanCorp., 56 AD3d 464 [2008]; Yashayev v Rodriguez, 28 AD3d at 652).
Since the defendants failed to satisfy their initial burden on their motion, it is not necessaryto consider whether the plaintiffs' papers in opposition were sufficient to raise a triable issue offact (see Perez v Fugon, 52 AD3d at 669; Gaccione v Krebs, 53 AD3d at 525;Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Rivera, J.P., Dillon, Miller, Balkinand Leventhal, JJ., concur.