| Ambroselli v Team Massapequa, Inc. |
| 2011 NY Slip Op 07593 [88 AD3d 927] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Frances Ambroselli, Appellant, v Team Massapequa, Inc.,Doing Business as Domino's Pizza, et al., Respondents. |
—[*1] Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for respondent Team Massapequa, Inc., doing business as Domino's Pizza. Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Seth M. Weinberg of counsel), forrespondents Timothy M. Lanahan and Judith A. Lanahan.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Marber, J.), entered June 17, 2010, which granted themotion of the defendant Team Massapequa, Inc., doing business as Domino's Pizza, and theseparate motion of the defendants Timothy M. Lanahan and Judith A. Lanahan, for summaryjudgment dismissing the complaint insofar as asserted against each of them on the ground thatthe plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Ordered that the order is reversed, on the law, with one bill of costs payable to the plaintiffby the defendant Team Massapequa, Inc., doing business as Domino's Pizza, and the defendantsTimothy M. Lanahan and Judith A. Lanahan, appearing separately and filing separate briefs, andthe motion of the defendant Team Massapequa, Inc., doing business as Domino's Pizza, and theseparate motion of the defendants Timothy M. Lanahan and Judith A. Lanahan, for summaryjudgment dismissing the complaint insofar as asserted against each of them on the ground thatthe plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), are denied.
Contrary to the Supreme Court's determination, the defendant Team Massapequa, Inc., doingbusiness as Domino's Pizza, and the defendants Timothy M. Lanahan and Judith A. Lanahan,failed to meet their prima facie burdens of showing that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thedefendants all relied on the same submissions in support of their motions, including the affirmedmedical reports of, among others, Dr. Audrie Marie DeJesus and Dr. Jacquelin Emmanuel. Dr.DeJesus, the defendants' examining neurologist, examined the plaintiff on June 30, 2009, slightlymore than two years after the accident, and noted significant limitations in the range of motion ofthe thoracolumbar region of the plaintiff's spine (see Artis v Lucas, 84 AD3d 845 [2011]; Ortiz v Orlov, 76 AD3d 1000,1001 [2010]; Cheour v Pete & SalsHarborview Transp., Inc., 76 AD3d 989 [2010]; Smith v Hartman, 73 AD3d 736 [2010]; Leopold v New York City Tr. Auth., 72AD3d 906 [2010]). While Dr. DeJesus opined that those limitations were "subjective" in[*2]nature, she failed to explain or substantiate, with anyobjective medical evidence, the basis for her conclusion that the noted limitations wereself-imposed (see Artis v Lucas, 84 AD3d at 845; Iannello v Vazquez, 78 AD3d 1121 [2010]; Granovskiy v Zarbaliyev, 78 AD3d656 [2010]; Perl v Meher, 74AD3d 930 [2010]; Bengaly vSingh, 68 AD3d 1030, 1031 [2009]; Moriera v Durango, 65 AD3d 1024, 1024-1025 [2009]; Torres v Garcia, 59 AD3d 705,706 [2009]; Busljeta v PlandomeLeasing, Inc., 57 AD3d 469 [2008]). In this case, the plaintiff alleged in her bill ofparticulars that the subject accident caused an exacerbation of her prior hemilaminectomy at L5,and an aggravation, exacerbation, and/or precipitation of prior dormant lower back pain. Thefindings of this expert failed to establish that the limitations noted by her were not caused by thesubject accident (see Rabinowitz vKahl, 78 AD3d 678 [2010]; Washington v Asdotel Enters., Inc., 66 AD3d 880 [2009]; McKenzie v Redl, 47 AD3d 775[2008]).
The affirmed medical report of Dr. Emmanuel, the only other defense expert to examine therange of motion of the lumbar region of the plaintiff's spine, set forth range of motion findingswith respect to that region of the plaintiff's body, but failed to compare those findings to what isnormal (see Grisales v City of NewYork, 85 AD3d 964, 965 [2011]; Frasca-Nathans v Nugent, 78 AD3d 651 [2010]; Chiara v Dernago, 70 AD3d 746,747 [2010]; Page v Belmonte, 45AD3d 825, 826 [2007]; Malave vBasikov, 45 AD3d 539, 540 [2007]; Fleury v Benitez, 44 AD3d 996 [2007]; Nociforo v Penna, 42 AD3d 514,515 [2007]).
Since the defendants failed to meet their prima facie burdens, it is unnecessary to considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (seeCoscia v 938 Trading Corp., 283 AD2d 538 [2001]).
Accordingly, the Supreme Court should have denied the defendants' motions for summaryjudgment. Rivera, J.P., Florio, Dickerson and Lott, JJ., concur. [Prior Case History: 27 Misc3d 1238(A), 2010 NY Slip Op 51099(U).]