| Frasca-Nathans v Nugent |
| 2010 NY Slip Op 07890 [78 AD3d 651] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Dorothy Frasca-Nathans, Respondent, v Courtney Nugent etal., Appellants. |
—[*1] Nicholas Panzini, P.C., Amityville, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of theSupreme Court, Westchester County (Loehr, J.), entered January 5, 2010, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
Although we affirm the order appealed from, we do so on grounds other than those relied upon bythe Supreme Court. Contrary to the Supreme Court's determination, the defendants failed to make aprima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955 [1992]). While the affirmed medical report of the defendants' examiningorthopedic surgeon set forth the range of motion of the plaintiff's right knee, he failed to compare thatfinding to what was normal (see Chiara vDernago, 70 AD3d 746 [2010]; Page v Belmonte, 45 AD3d 825, 826 [2007]). Since the defendantsfailed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted bythe plaintiff were sufficient to raise a triable issue of fact (see Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977 [2009]).
The defendants' remaining contentions are without merit. Rivera, J.P., Covello, Eng, Leventhal andAustin, JJ., concur.