| Shevardenidze v Vaiana |
| 2009 NY Slip Op 01635 [60 AD3d 660] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 40—Vakhtang Shevardenidze et al.,Respondents, v Raymond Vaiana, Appellant, et al.,Defendant. |
—[*1]
In an action, inter alia, to recover damages for personal injuries, the defendant RaymondVaiana appeals, as limited by his brief, from so much of an order of the Supreme Court, QueensCounty (Dorsa, J.), dated March 31, 2008, as denied his cross motion, in effect, for summaryjudgment dismissing the first, second, third, and fourth causes of action insofar as assertedagainst him on the ground that none of the plaintiffs sustained a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thecross motion, in effect, for summary judgment dismissing the first, second, third, and fourthcauses of action insofar as asserted against Raymond Vaiana is granted.
This action arises from a two-car accident in which a motor vehicle driven by the appellantrear-ended the motor vehicle occupied by the four plaintiffs. In the first through fourth causes ofaction in their complaint, each of the plaintiffs alleged that they sustained serious injuries as aresult of the accident. After discovery, the appellant cross-moved, in effect, for summaryjudgment dismissing those causes of action on the ground that none of the plaintiffs sustained aserious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court deniedthe cross motion. We reverse.
Contrary to the Supreme Court's determination, the appellant established a prima facie casethat none of the plaintiffs sustained a serious injury within the meaning of Insurance Law§ 5102 (d) through his submission of their deposition testimonies and the affirmed medicalreports of his expert orthopedist and neurologist, who examined the plaintiffs and concluded thatthey were not disabled (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002];Gaddy v Eyler, 79 NY2d 955, 956, 957 [1992]; Kearse v New York City Tr. Auth., 16 AD3d 45, 51-52 [2005]).The appellant's examining experts concluded, based on [*2]objective range of motion tests, that the plaintiffs had full range ofmotion in, inter alia, their cervical and lumbar spines.
In opposition to the cross motion, the plaintiffs failed to demonstrate the existence of atriable issue of fact. The only admissible medical evidence submitted by the plaintiffs inopposition to the cross motion were affirmed medical reports prepared by Dr. RondolphRosarion. As Dr. Rosarion did not examine the plaintiffs until more than three years after thesubject motor vehicle accident, the limitations he found in the plaintiffs' ranges of motion werenot contemporaneous with the subject accident (see Morris v Edmond, 48 AD3d 432, 433 [2008]; D'Onofrio v Floton, Inc., 45 AD3d525 [2007]). Therefore, the Supreme Court should have granted the appellant's crossmotion. Fisher, J.P., Miller, Carni and Balkin, JJ., concur.