| Diorio v Butler |
| 2010 NY Slip Op 00466 [69 AD3d 787] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Simona Diorio, Appellant, v Pantin M. Butler et al.,Respondents. (And a Third-Party Action.) |
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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), enteredNovember 12, 2008, as granted that branch of the defendants' motion which was for summaryjudgment dismissing the complaint on the ground that she did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendants' motion which was for summary judgment dismissing the complaint onthe ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) is denied, and the matter is remitted to the Supreme Court, Nassau County, fora determination of that branch of the defendants' motion which was for summary judgmentdismissing the complaint on the ground that they were not at fault in the happening of theaccident.
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 to her right hand as aresult 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]). The affirmed medical report of thedefendants' examining hand surgeon concluded that the subject accident aggravated apre-existing arthritic condition in the plaintiff's right thumb, and noted limitations in her range ofmotion. However, the hand surgeon failed to compare the limitations he observed to what wouldbe considered a normal range of motion, and his report thus was insufficient to establish that thedecreased range of motion in the plaintiff's right thumb was so mild, minor, or slight as to beconsidered insignificant within the meaning of the no-fault statute (see Moore v Stasi, 62 AD3d 764,765 [2009]; Marshak v Migliore, 60AD3d 647, 648 [2009]; Webb vKeyspan Corp., 56 AD3d 464, 465 [2008]; Gaccione v Krebs, 53 AD3d 524, 525 [2008]; Giammanco v Valerio, 47 AD3d674, 675 [2008]).
Since the defendants failed to satisfy their initial burden on their motion, it is [*2]unnecessary to consider whether the plaintiff's papers in oppositionwere sufficient to raise a triable issue of fact (see Moore v Stasi, 62 AD3d at 765;Marshak v Migliore, 60 AD3d at 648; Webb v Keyspan Corp., 56 AD3d at 464).
In light of our determination, we remit the matter to the Supreme Court, Nassau County, todetermine that branch of the defendants' motion which was for summary judgment dismissingthe complaint on the ground that they were not at fault in the happening of the accident. Dillon,J.P., Miller, Eng, Hall and Sgroi, JJ., concur.