| Spanos v Harrison |
| 2009 NY Slip Op 08605 [67 AD3d 893] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Nicholas Spanos, Plaintiff, v Thomas R. Harrison,Defendant. (Action No. 1.) Markus Berke et al., Respondents, v Thomas R. Harrison, Appellant,et al., Defendants. (Action No. 2.) |
—[*1] Scott D. Sklar, Hicksville, N.Y., for respondents.
In two related actions to recover damages for personal injuries, etc., the defendant ThomasR. Harrison appeals, as limited by his brief, from so much of an order of the Supreme Court,Nassau County (Spinola, J.), entered February 3, 2009, as denied that branch of his motionwhich was for summary judgment dismissing the complaint in action No. 2 insofar as assertedagainst him on the ground that the plaintiff Markus Berke did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Thomas R. Harrison failed to meet his prima facie burden of demonstratingon his motion for summary judgment that Markus Berke, a plaintiff in action No. 2 (hereinafterthe injured plaintiff), did not sustain a serious injury 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, 79 NY2d 955, 956-957 [1992]). In support ofhis motion, Harrison relied upon, among other things, the affirmed medical reports of Dr. StevenEnder and Dr. Charles J. Kandler. Initially, in the report of Dr. Ender, Harrison's examiningneurologist, he set forth a range of motion finding concerning the injured plaintiff's lumbar spinebut failed to compare that finding to what is normal (see Giammanco v Valerio, 47 AD3d 674 [2008]; Nociforo v Penna, 42 AD3d 514[2007]; McNulty v Buglino, 40AD3d 591 [2007]; Osgood vMartes, 39 AD3d 516 [2007]; McLaughlin v Rizzo, 38 AD3d 856 [2007]; Bluth v WorldOmni Fin. Corp., 38AD3d 817 [2007]; Harman vBusch, 37 AD3d 537 [2007]). While Dr. Ender noted that the injured plaintiff was ableto bend over, pick up his sneakers and tie them, he failed to correlate that to his finding that theinjured plaintiff was only able to forward flex to "approximately 70 degrees" upon examination(see Gibson-Wallace v Dalessandro,58 AD3d 679 [2009]).
Moreover, in the report of Dr. Kandler, Harrison's examining urologist, the injured plaintiffwas actually diagnosed with erectile dysfunction, one of the injuries he alleged in his bill ofparticulars to [*2]have sustained in the subject accident. WhileDr. Kandler did not feel that the erectile dysfunction he diagnosed was causally related to thesubject accident, he failed to set forth the foundation for that conclusion, especially since heopined that further testing was required to determine the cause (see Franchini v Palmieri, 1 NY3d536 [2003]).
Since Harrison failed to meet his prima facie burden, it is unnecessary to consider whetherthe papers submitted by the injured plaintiff in opposition were sufficient to raise a triable issueof fact (see Giammanco v Valerio, 47 AD3d at 675; Coscia v 938 Trading Corp.,283 AD2d 538 [2001]). Rivera, J.P., Miller, Balkin, Leventhal and Hall, JJ., concur.