| Mannix v Lisi's Towing Serv., Inc. |
| 2009 NY Slip Op 08793 [67 AD3d 977] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Terrance Mannix, Appellant, v Lisi's Towing Service, Inc.,et al., Respondents. |
—[*1] Cartafalsa, Slattery, Turpin & Lenoff, Tarrytown, N.Y. (Patricia A. Hughes of counsel), forrespondents Lisi's Towing Service, Inc., D&M Rentals, and David S. MacLeod. O'Connor, McGuiness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L.Effinger and Linda Acus of counsel), for respondents Kyle S. Brown and Janis L.Brown.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Bellantoni, J.), entered October 6, 2008, which grantedthe separate motions of the defendants Lisi's Towing Service, Inc., D&M Rentals, and David S.MacLeod, and the defendants Kyle S. Brown and Janis L. Brown, for summary judgmentdismissing the complaint insofar as asserted against them on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs to the plaintiff payableby the defendants appearing separately and filing separate briefs, and the defendants' separatemotions for summary judgment dismissing the complaint insofar as asserted against them aredenied.
Contrary to the Supreme Court's determination, the defendants failed to meet their primafacie burdens of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Insupport of their separate motions, the defendants relied on the same submissions, which includedthe affirmed medical report of Dr. John H. Buckner, a neurologist who examined the plaintiff onNovember 16, 2007. While Dr. Buckner opined that the plaintiff had "normal" range of motionin his cervical and lumbar spine upon testing on that date, he failed to set forth the objectivetesting he employed to arrive at those conclusions (see Smith v Quicci, 62 AD3d 858 [2009]; Giammalva v Winters, 59 AD3d595 [2009]; Stern v OceansideSchool Dist., 55 AD3d 596 [2008]; Cedillo v Rivera, 39 AD3d 453 [2007]; McLaughlin v Rizzo, 38 AD3d856 [2007]). The remaining physical examination reports submitted by the defendantsconcerning the plaintiff, which included reports from two of the plaintiff's own treatingphysicians, suffered from the same deficiency of failing to provide objective testing to supporttheir [*2]conclusions.
Since the defendants failed to meet their respective prima facie burdens, it is unnecessary todecide whether the papers submitted by the plaintiff in opposition were sufficient to raise atriable issue of fact (see Giammalva v Winters, 59 AD3d at 595; Coscia v 938Trading Corp., 283 AD2d 538 [2001]). Fisher, J.P., Santucci, Dickerson, Chambers andLott, JJ., concur.