WRIGHT v. AAA CONSTRUCTION SERVICES INC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated January 12, 2007, which granted the motion of the defendants AAA Construction Services, Inc., and Natanahel Barreira, and the separate motion of the defendants Jean Labranche and Jimward J. Labranche for summary judgment dismissing the complaint insofar as asserted against 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 costs, and the defendants' motions for summary judgment dismissing the complaint insofar as asserted against them are denied.

The Supreme Court erred in concluding that the defendants satisfied their respective prima facie burdens on their separate motions for summary judgment by showing 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, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In support of their motions, the defendants relied on essentially the same submissions.   Included within those submissions was the affirmed medical report of their examining orthopedic surgeon, who noted significant range of motion limitations in the plaintiff's left shoulder upon examination two years post-accident (see Zamaniyan v. Vrabeck, 41 A.D.3d 472, 835 N.Y.S.2d 903;  Sullivan v. Johnson, 40 A.D.3d 624, 835 N.Y.S.2d 367;  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;  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).   Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, and it is unnecessary to reach the question of whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Zamaniyan v. Vrabeck, 41 A.D.3d 472, 835 N.Y.S.2d 903;  Sullivan v. Johnson, 40 A.D.3d 624, 835 N.Y.S.2d 367;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).