| Jones v Anderson |
| 2012 NY Slip Op 01657 [93 AD3d 640] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Ernest Jones, Appellant, v Glendon Anderson et al.,Respondents. |
—[*1] Robert P. Tusa, Garden City, N.Y. (Donald W. Sweeney of counsel), for respondentsGlendon Anderson and Hughette Wong. Peknic, Peknic & Schaefer, LLC, Long Beach, N.Y. (Brian Peknic of counsel), forrespondents Abraham Geus and Elrac, Inc. Gallo, Vitucci & Klar, LLP, New York, N.Y. (Yolanda Ayala of counsel), for respondentsFloyd McMillan and Melvia Ashby.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), dated October 1, 2010, which granted theseparate motions of the defendants Floyd McMillan and Melvia Ashby, and the defendantsGlendon Anderson and Hughette Wong, for summary judgment dismissing the complaint insofaras asserted against each of them on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d), and, upon, in effect, searching the record,awarded summary judgment to the defendants Abraham Geus and Elrac, Inc., dismissing thecomplaint insofar as asserted against them on the same ground.
Ordered that the order is reversed, on the law, with one bill of costs, and the separate motionsof the defendants Floyd McMillan and Melva Ashby, and the defendants Glendon Anderson andHughette Wong, for summary judgment dismissing the complaint insofar as asserted against eachof them are denied.
The defendants Floyd McMillan and Melvia Ashby, and the defendants Glendon Andersonand Hughette Wong (hereinafter collectively the defendants), failed to meet their respectiveprima facie burdens of showing that the plaintiff did not sustain 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 [1992]).The plaintiff alleged, inter alia, that the lumbar region of his spine sustained certain injuries as aresult of the subject accident. Although the defendants asserted that those alleged injuries did notconstitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Tourev Avis Rent A Car Sys., 98 NY2d at 352; Gaddy v Eyler, 79 [*2]NY2d at 955-956), the defendants' examining orthopedic surgeonand examining neurologist both recounted, in affirmed reports submitted in support of thedefendants' motions for summary judgment, that range-of-motion testing performed during theexaminations revealed the existence of a significant limitation in the region (see Scott v Gresio, 90 AD3d 736,737 [2011]; Walter v Walch, 88AD3d 872, 873 [2011]; Cues vTavarone, 85 AD3d 846 [2011]).
Since the defendants failed to meet their respective prima facie burdens, the Supreme Courtshould have denied their motions for summary judgment without considering whether theplaintiff's opposition papers were sufficient to raise a triable issue of fact (see Scott vGresio, 90 AD3d at 737), and should not have, upon, in effect, searching the record, awardedsummary judgment to the defendants Abraham Geus and Elrac, Inc. Rivera, J.P., Eng, Chambers,Sgroi and Miller, JJ., concur.