| Walker v Public Adm'r of Suffolk County |
| 2009 NY Slip Op 01795 [60 AD3d 757] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Fred Walker, Appellant, v Public Administrator of SuffolkCounty, Defendant, and Gregory Zephirin et al., Defendants-Respondents. Estate of Isaac Odom,Deceased, Nonparty Respondent. |
—[*1] John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for defendants-respondentsGregory Zephirin and Rose Esther Compere. Brian J. McGovern, LLC, New York, N.Y. (Alison M. K. Lee of counsel), for nonpartyrespondent Estate of Isaac Odom.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Suffolk County (Baisley, Jr., J.), dated January 10, 2008, which grantedthe motion of the nonparty Estate of Isaac Odom made, in effect, on behalf of the defendantPublic Administrator of Suffolk County for the Estate of Isaac Odom, and the separate motionsof the defendants Gregory Zephirin and Rose Esther Compere, for summary judgmentdismissing the complaint insofar as asserted against them on the ground that he did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident, and (2) an order of the same court dated May 20, 2008, which denied his motion forleave to reargue.
Ordered that the appeal from the order dated May 20, 2008, is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order dated January 10, 2008, is reversed, on the law, and the motion of[*2]the nonparty Estate of Isaac Odom, made, in effect, on behalfof the defendant Public Administrator of Suffolk County for the Estate of Isaac Odom, and theseparate motion of the defendants Gregory Zephirin and Rose Esther Compere for summaryjudgment dismissing the complaint insofar as asserted against them on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)are denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by thedefendants-respondents and nonparty respondent appearing separately and filing separate briefs.
In support of their respective motions, the respondents relied on the same submissions.These submissions, contrary to the determination of the Supreme Court, failed to meet therespondents' respective prima facie burdens of showing that the plaintiff did not sustain a seriousinjury 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, 79NY2d 955, 956-957 [1992]). In support of their respective motions, the respondents relied upon,inter alia, the affirmed medical reports of Dr. Lawrence Miller, an orthopedic surgeon, and Dr. S.Farkas, a neurologist. While Dr. Miller noted in his report that the plaintiff could bend forwardin his lumbar spine to more than 60 degrees, he failed to compare that finding to what is normal(see Page v Belmonte, 45 AD3d825 [2007]; Malave v Basikov,45 AD3d 539 [2007]; Fleury vBenitez, 44 AD3d 996 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]). Moreover, he also notedthat the plaintiff could carry out bilateral straight-leg raising to more than 45 degrees, yet failedto compare that finding to what is normal. Although Dr. Farkas noted in his affirmed medicalreport that the plaintiff could abduct his right shoulder to 170 degrees, which Dr. Farkas deemednormal, he further noted that internal rotation of the right shoulder was to "L3," and failed tocompare that finding to what is normal.
Since the respondents failed to meet their respective prima facie burdens, it is unnecessary toconsider whether the papers submitted by the plaintiff were sufficient to raise a triable issue offact (see Page v Belmonte, 45AD3d 825 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Spolzino,J.P., Ritter, Covello and Belen, JJ., concur.