| Kearney v Garrett |
| 2012 NY Slip Op 01213 [92 AD3d 725] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Michael D. Kearney et al., Appellants, v Michael K.Garrett et al., Respondents. |
—[*1] Craig P. Curcio, Middletown, N.Y. (Bryan R. Kaplan of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Brands, J.), dated November 30, 2010, which grantedthe defendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Michael D. Kearney did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of showing that the plaintiff MichaelD. Kearney (hereinafter the injured plaintiff) did not sustain a serious injury within the meaningof Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis RentA Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).The plaintiffs alleged that as a result of the subject accident, the injured plaintiff's left kneesustained certain injuries. Although the defendants attempted to establish, prima facie, that thosealleged injuries did not constitute a serious injury within the meaning of Insurance Law §5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d at 352; Gaddy v Eyler, 79NY2d at 955-956), the defendants' examining orthopedist recounted, in an affirmed reportsubmitted in support of the motion for summary judgment, that range-of-motion testingperformed during the examination revealed the existence of a significant limitation of motion inthe knee (see Scott v Gresio, 90AD3d 736, 736 [2011]). Furthermore, to the extent that the defendants also attempted toestablish, prima facie, that those alleged injures were not caused by the subject accident, thedefendants failed to do so, as their evidentiary submissions actually demonstrated the existenceof a triable issue of fact as to causation (see Rampino v Shaffren, 90 AD3d 884, 885 [2011]; Luby v Tsybulevskiy, 89 AD3d689 [2011]; Kelly v Ghee, 87AD3d 1054, 1055 [2011]).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint, without regard to the sufficiency of the papers submitted bythe plaintiffs in opposition (see Scott v Gresio, 90 AD3d at 736; Kelly v Ghee, 87[*2]AD3d at 1055). Skelos, J.P., Dickerson, Hall, Roman andCohen, JJ., concur.