LaCAGNINA v. BERNARD (2006)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated February 17, 2006, which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

Contrary to the defendant's contention, the Supreme Court properly determined that he failed to establish, prima facie, that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmed medical reports of the defendant's examining neurologist concerning each plaintiff established significant limitations in various aspects of their respective cervical and lumbar spines which required denial of the motion (see Smith v. Delcore, 29 A.D.3d 890, 814 N.Y.S.2d 554;  Sano v. Gorelik, 24 A.D.3d 747, 805 N.Y.S.2d 854;  Kaminsky v. Waldner, 19 A.D.3d 370, 796 N.Y.S.2d 175;  Spuhler v. Khan, 14 A.D.3d 693, 789 N.Y.S.2d 228;  Omar v. Bello, 13 A.D.3d 430, 786 N.Y.S.2d 563;  Scotti v. Boutureira, 8 A.D.3d 652, 779 N.Y.S.2d 255).   Moreover, while the affirmed medical reports of the defendant's examining orthopedist concerning each plaintiff set forth range of motion findings as to their respective cervical and lumbar spines he failed to compare those findings to what is considered normal ranges of motion (see Sullivan v. Dawes, 28 A.D.3d 472, 811 N.Y.S.2d 596;  Browdame v. Candura, 25 A.D.3d 747, 807 N.Y.S.2d 658;  Paulino v. Dedios, 24 A.D.3d 741, 807 N.Y.S.2d 397;  Kennedy v. Brown, 23 A.D.3d 625, 805 N.Y.S.2d 408;  Baudillo v. Pam Car & Truck Rental, 23 A.D.3d 420, 803 N.Y.S.2d 922;  Manceri v. Bowe, 19 A.D.3d 462, 798 N.Y.S.2d 441;  Aronov v. Leybovich, 3 A.D.3d 511, 770 N.Y.S.2d 741).   Since the defendant failed to meet his prima facie burden it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact as to whether either plaintiff sustained a serious injury as a result of the subject accident (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).