| Buono v Sarnes |
| 2009 NY Slip Op 07571 [66 AD3d 809] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Vito Buono et al., Respondents, v Richard Sarnes,Appellant. |
—[*1] Morici & Morici, LLP, Garden City, N.Y. (William B. Baier of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Schmidt, J.), dated March 11, 2009, which deniedhis motion for summary judgment dismissing the complaint on the ground that neither of theplaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court properly determined that the defendant failed to meet his prima facieburden of showing that neither of the plaintiffs sustained 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]). With respect to the plaintiff VitoBuono (hereinafter Vito) the defendant, in support of his motion, relied on, inter alia, theaffirmed medical reports of Dr. Edward Toriello and Dr. Naunihal Sachdev Singh. Dr. Toriello,the defendant's retained orthopedic surgeon, examined Vito on September 11, 2008 and found asignificant limitation in lumbar spine range of motion. This finding alone was sufficient to denythe defendant's motion as addressed to Vito's injuries (see Held v Heideman, 63 AD3d 1105 [2009]; Torres v Garcia, 59 AD3d 705[2009]; Bagot v Singh, 59 AD3d368 [2009]; Hurtte v BudgetRoadside Care, 54 AD3d 362 [2008]; Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555,556 [2007]; Zamaniyan v Vrabeck,41 AD3d 472, 473 [2007]). Dr. Singh, the defendant's retained neurologist, alsoexamined Vito on September 11, 2008. On that date, Dr. Singh noted significant limitations ofmotion in the cervical and lumbar regions of Vito's spine during examination. Although Dr.Singh averred that Vito had preexisting osteoarthritis and degenerative disc disease, he failed toset forth the foundation for that conclusion (see Franchini v Palmieri, 1 NY3d 536 [2003]; see also Luciano v Luchsinger, 46AD3d 634 [2007]).
With respect to the plaintiff Eleonora Buono (hereinafter Eleonora), the defendant relied onthe affirmed medical reports of, inter alia, Dr. Toriello and Dr. Singh. Dr. Toriello examinedEleonora on September 11, 2008. On that date, Dr. Toriello noted a significant limitation [*2]in her lumbar spine range of motion and a significant limitation inher cervical spine range of motion. These findings alone were sufficient to deny the defendant'smotion as addressed to Eleonora's injuries (see Alvarez v Dematas, 65 AD3d 598 [2009]; Landman v Sarcona, 63 AD3d690 [2009]; Bagot v Singh, 59AD3d 368 [2009]; Hurtte v BudgetRoadside Care, 54 AD3d 362 [2008]; Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]). Dr. Singhalso examined Eleonora on September 11, 2008. He also found significant limitations in therange of motion of her lumbar spine when he examined her. While Dr. Singh concluded thatEleonora suffered from preexisting osteoarthritis and degenerative disc disease, he failed to setforth the foundation for that conclusion (see Franchini v Palmieri, 1 NY3d 536 [2003]; Luciano v Luchsinger, 46 AD3d634 [2007]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint without considering the sufficiency of the plaintiffs'opposition papers (see Alvarez vDematas, 65 AD3d 598 [2009]; Held v Heideman, 63 AD3d 1105 [2009]; Coscia v 938Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P., Covello, Santucci, Chambers andAustin, JJ., concur.