| Chiara v Dernago |
| 2010 NY Slip Op 00915 [70 AD3d 746] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Nicholas Chiara et al., Appellants, v Sean P. Dernago etal., Respondents. |
—[*1] Mulholland, Minion & Roe, Williston Park, N.Y. (Ronald J. Morelli of counsel), forrespondent Sean P. Dernago. Martyn, Toher & Martyn, Mineola, N.Y. (Frank P. Toher of counsel), for respondentConnecticut Shellfish Co.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Nassau County (Mahon, J.), dated October 30, 2008, which grantedthe defendants' separate motions for summary judgment dismissing the complaint insofar asasserted against them on the ground that neither plaintiff sustained a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs payable to the plaintiffsby the defendants appearing separately and filing separate briefs, and the defendants' separatemotions for summary judgment dismissing the complaint insofar as asserted against them on theground that neither plaintiff sustained a serious injury within the meaning of Insurance Law§ 5102 (d) are denied.
Contrary to the Supreme Court's determination, both of the defendants failed to meet theirprima facie burdens of showing that neither plaintiff sustained a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]). In support of their separate motions, both defendants relied largely on the samesubmissions, which included the affirmed medical reports of an orthopedic surgeon whoexamined each plaintiff. These reports were insufficient to sustain the defendants' respectiveprima facie burdens. Although the surgeon noted that the plaintiff Venetia K. Chiara had fullrange of motion in the cervical and lumbar regions "to all directions," and that the plaintiffNicholas Chiara's cervical range of motion was "normal," he failed to set forth what objectivetesting he did in order to arrive at those conclusions (see Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977 [2009]; Smith v Quicci, 62 AD3d 858[2009]; Giammalva v Winters, 59AD3d 595 [2009]; Stern vOceanside School Dist., 55 AD3d 596 [2008]; Valdes v Timberger, 41 AD3d 836 [2007]; Cedillo vRivera, 39 [*2]AD3d 453 [2007]; McLaughlin v Rizzo, 38 AD3d856 [2007]). The remaining medical reports submitted by the defendants were alsoinsufficient because the physicians who prepared them failed to compare their findings to what isnormal (see Wallace v Adam RentalTransp., Inc., 68 AD3d 857 [2009]; Page v Belmonte, 45 AD3d 825, 826 [2007]; Malave v Basikov, 45 AD3d 539,540 [2007]; Fleury v Benitez, 44AD3d 996 [2007]), failed to set forth the objective tests employed to arrive at theirconclusions, and/or did not address all the injuries alleged by the plaintiffs.
Since the defendants failed to meet their respective prima facie burdens, it is unnecessary todecide whether the papers submitted by the plaintiffs in opposition were sufficient to raise atriable issue of fact (see Mannix v Lisi'sTowing Serv., Inc., 67 AD3d 977 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Giammalva v Winters, 59 AD3d595 [2009]; Stern v OceansideSchool Dist., 55 AD3d 596 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.