DERBY v. MENCHENFRIEND (2005)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated August 13, 2004, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and failed to dispose of her cross motion on the merits.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Dutchess County, to determine the plaintiff's cross motion for partial summary judgment on the issue of liability.

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury (see Insurance Law § 5102[d] ) as a result of the accident (see Berkowitz v. Decker Transport Co., 5 A.D.3d 712, 774 N.Y.S.2d 164).   The defendant's medical expert acknowledged that the accident exacerbated the plaintiff's neck and back symptoms (see Trunk v. Spross, 306 A.D.2d 463, 761 N.Y.S.2d 322).   Moreover, the defendant's medical expert examined the plaintiff and did not indicate that she exhibited full range of motion in her cervical and lumbar spines (cf. Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281).

The plaintiff cross-moved for partial summary judgment on the issue of liability.   The Supreme Court noted that the relief requested in the cross motion was “moot,” in light of its determination to grant the defendant's motion to dismiss.   Although the plaintiff improperly raised the issue of the Supreme Court's failure to dispose of her cross motion on the merits for the first time in her reply papers (see Simon v. Mehryari, 16 A.D.3d 664, 792 N.Y.S.2d 543 [issue may not be raised for first time in reply brief] ), the matter must be remitted to the Supreme Court to determine her cross motion on the merits.