| Smith v Hartman |
| 2010 NY Slip Op 03899 [73 AD3d 736] |
| May 4, 2010 |
| Appellate Division, Second Department |
| David Smith et al., Appellants, et al., Plaintiff, v GeorgeW. Hartman, Respondent. |
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In an action to recover damages for personal injuries, etc., the plaintiffs David Smith, AnnSmith, Toros Demirdjian, and Nicole Demirdjian appeal from so much of an order of theSupreme Court, Nassau County (Davis, J.), entered August 11, 2008, as granted the defendant'smotion for summary judgment dismissing the complaint insofar as asserted by them on theground that neither the plaintiff David Smith nor the plaintiff Toros Demirdjian sustained aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint insofar as asserted by theplaintiffs David Smith, Ann Smith, Toros Demirdjian, and Nicole Demirdjian on the ground thatneither the plaintiff David Smith nor the plaintiff Toros Demirdjian sustained a serious injurywithin the meaning of Insurance Law § 5102 (d) is denied.
Contrary to the Supreme Court's determination, the defendant failed to meet his prima facieburden of showing that neither the plaintiff David Smith (hereinafter Mr. Smith) nor the plaintiffToros Demirdjian (hereinafter Mr. Demirdjian) sustained 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 his motion, the defendant relied on the affirmed medical reports of Dr. ArthurBernhang, his examining orthopedic surgeon. As to Mr. Smith, Dr. Bernhang noted a significantlimitation in the cervical region of his spine during active range-of-motion testing when heexamined Mr. Smith more than four years post-accident (see Kjono v Fenning, 69 AD3d 581 [2010]; Ortiz v S&A Taxi Corp., 68 AD3d734 [2009]; Buono v Sarnes,66 AD3d 809 [2009]). As to Mr. Demirdjian, Dr. Bernhang noted significant limitationsduring active shoulder range-of-motion testing, which occurred some 4½ yearspost-accident (see Quiceno v Mendoza, 72 AD3d 669, 669 [2010]; Giacomaro v Wilson, 58 AD3d802, 803 [2009]; McGregor vAvellaneda, 50 AD3d 749, 749-750 [2008]; Wright v AAA Constr. Servs., Inc., 49 AD3d 531 [2008]).
Since the defendant failed to meet his prima facie burden, we need not address the questionof whether the submissions of Mr. Smith or Mr. Demirdjian raised a triable issue of fact (seeQuiceno v [*2]Mendoza, 72 AD3d 669, 670 [2010];Kjono v Fenning, 69 AD3d at 581; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Skelos, J.P., Dillon, Angiolillo, Eng and Sgroi, JJ., concur.