| Johnson v Tranquille |
| 2010 NY Slip Op 00814 [70 AD3d 645] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Boswell A. Johnson et al., Respondents, v BertinTranquille et al., Appellants. |
—[*1] Eric H. Green, New York, N.Y. (Marc Gertler of counsel), for respondents.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), datedFebruary 6, 2009, as, upon granting that branch of their motion which was to vacate their defaultin opposing the plaintiffs' prior motion for leave to reargue, and thereupon granting the plaintiff'smotion for leave to reargue, upon reargument, denied their motion for summary judgmentdismissing the complaint on the ground that the plaintiffs did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) and granted the plaintiffs' cross motion forsummary judgment on the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and, uponreargument, the determination in an order dated November 5, 2007, granting the defendants'motion for summary judgment dismissing the complaint and denying the plaintiffs' cross motionfor summary judgment on the issue of liability is adhered to, and an order dated March 28, 2008,is vacated.
Contrary to the determination of the Supreme Court, the defendants made a prima facieshowing that neither of the plaintiffs sustained a serious injury within the meaning of InsuranceLaw § 5102 (d) through their submission of the affirmed reports of their expert orthopedistand neurologist, who examined the plaintiffs and concluded that their examinations wereessentially normal (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002];Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Shevardenidze v Vaiana, 60 AD3d 660 [2009]; Nelson vDistant, 308 AD2d 338, 339 [2003]). In opposition, the plaintiffs failed to raise a triableissue of fact. Notably, the medical affirmations submitted on behalf of the plaintiffs failed to setforth the actual ranges of motion achieved by the plaintiffs contemporaneously with the accident,and to compare those findings to normal ranges of motion (see Morris v Edmond, 48 AD3d 432 [2008]). Likewise, theplaintiffs' submissions failed to raise a triable issue of fact regarding any other statutory categoryof serious injury.
In view of the foregoing, the defendants' motion for summary judgment dismissing thecomplaint should have been granted, and the plaintiffs' cross motion for summary judgment onthe issue of liability should have been denied. Prudenti, P.J., Mastro, Florio and Austin, JJ.,concur.