| Starkey v Curry |
| 2012 NY Slip Op 02673 [94 AD3d 866] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Walter J. Starkey et al., Appellants, v Thomas F. Curry,Respondent. |
—[*1] Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Yonkers, N.Y. (E. RichardVieira of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Pagones, J.), dated July 29, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that theplaintiff Walter J. Starkey did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The Supreme Court erred in determining that the defendant made a prima facie showing thatthe plaintiff Walter J. Starkey (hereinafter the injured plaintiff) did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]). In support of his motion, the defendant relied upon, among other things,affirmed medical reports of Dr. Robert C. Hendler, the defendant's examining orthopedist, whoset forth in his December 16, 2010, report, based upon his examination of the injured plaintiff onDecember 14, 2010, the range-of-motion findings with respect to the cervical and lumbar regionsof the injured plaintiff's spine and his shoulders, but failed to compare those findings to what isnormal (see Ambroselli v TeamMassapequa, Inc., 88 AD3d 927, 928 [2011]; Grisales v City of New York, 85 AD3d 964, 965 [2011]; Levin v Khan, 73 AD3d 991[2010]; Page v Belmonte, 45 AD3d825 [2007]).
Since the defendant failed to meet his prima facie burden, it is unnecessary to considerwhether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Page v Belmonte, 45 AD3d825 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint. Dillon, J.P., Angiolillo, Belen and Cohen, JJ., concur.