GIAMMANCO v. VALERIO (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 5, 2006, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs, and the motions for summary judgment dismissing the complaint insofar as asserted against the defendants are denied.

Contrary to the Supreme Court's determination, the defendants failed to establish, on their separate motions for summary judgment, that the plaintiff did not sustain 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, 355, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  McNulty v. Buglino, 40 A.D.3d 591, 836 N.Y.S.2d 198;  McLaughlin v. Rizzo, 38 A.D.3d 856, 832 N.Y.S.2d 666).   In support of their separate motions for summary judgment, the defendants relied on essentially the same submissions, including the affirmed medical reports of the examining orthopedist and neurologist of the defendant Michael Valerio, Jr. In the affirmed medical report of the examining orthopedist, he set forth lumbar spine range of motion findings, but failed to compare those findings to what is normal (see Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415;  Nociforo v. Penna, 42 A.D.3d 514, 515, 840 N.Y.S.2d 396;  McNulty v. Buglino, 40 A.D.3d at 592, 836 N.Y.S.2d 198;  Osgood v. Martes, 39 A.D.3d 516, 831 N.Y.S.2d 724;  McLaughlin v. Rizzo, 38 A.D.3d at 858, 832 N.Y.S.2d 666), and in the process noted a significant limitation in the plaintiff's lumbar rotation (see Jenkins v. Miled Hacking Corp., 43 A.D.3d 393, 841 N.Y.S.2d 317;  Bentivegna v. Stein, 42 A.D.3d 555, 841 N.Y.S.2d 316;  Zamaniyan v. Vrabeck, 41 A.D.3d 472, 473, 835 N.Y.S.2d 903).   In the report of the examining neurologist, he concluded that the plaintiff had “full” range of motion in, inter alia, the cervical and lumbar regions of her spine, yet failed to set forth the objective test or tests he performed to arrive at those conclusions (see Palladino v. Antonelli, 40 A.D.3d 944, 945, 836 N.Y.S.2d 656;  McCrary v. Street, 34 A.D.3d 768, 769, 825 N.Y.S.2d 514;  Nembhard v. Delatorre, 16 A.D.3d 390, 391, 791 N.Y.S.2d 144).

Since the defendants failed to establish their respective prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to reach the question of whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Palladino v. Antonelli, 40 A.D.3d at 945, 836 N.Y.S.2d 656;  McNulty v. Buglino, 40 A.D.3d at 592, 836 N.Y.S.2d 198;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).