| McCarthy v Gagne |
| 2009 NY Slip Op 03488 [61 AD3d 942] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Dorothy McCarthy, Appellant, v Melissa Gagne et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Glen Feinberg ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Kramer, J.), entered November 27, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she didnot 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.
Contrary to the Supreme Court's determination, the defendants failed to meet their primafacie burden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their motion forsummary judgment, the defendants relied on, among other documents, the affirmed medicalreports of Dr. Robert Zaretsky, Dr. Alan Zimmerman, and Dr. Philip G. Taylor. In his report, Dr.Zaretsky, an orthopedic surgeon who examined the plaintiff on October 10, 2005, providedrange-of-motion findings with respect to the plaintiff's left shoulder, yet he failed to compare allof those findings to what is normal (seeBanguela v Babbo, 51 AD3d 833 [2008]; Page v Belmonte, 45 AD3d 825 [2007]; Malave v Basikov, 45 AD3d 539[2007]; Fleury v Benitez, 44 AD3d996 [2007]; Nociforo v Penna,42 AD3d 514 [2007]). The same deficiencies are found in the reports of Dr.Zimmerman and Dr. Taylor. Dr. Zimmerman, an orthopedic surgeon who evaluated the plaintiffon [*2]December 6, 2005, noted in his report range-of-motionfindings with respect to the plaintiff's cervical spine, yet he failed to compare those findings towhat is normal. Dr. Taylor, the defendants' examining orthopedic surgeon, set forth in his reportrange-of-motion findings with respect to, inter alia, the plaintiff's cervical spine, however hefailed to compare those findings to what is normal.
Since the defendants failed to meet their initial prima facie burden, it is unnecessary toconsider whether the papers submitted by the plaintiff in opposition were sufficient to raise atriable issue of fact (see Banguela vBabbo, 51 AD3d 833 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Mastro, J.P., Fisher, Florio and Eng, JJ., concur.