DOHERTY v. GALLA (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 24, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Lisa Doherty 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' motion for summary judgment dismissing the complaint is denied.

Contrary to the Supreme Court's determination, the defendants failed to establish their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff Lisa Doherty 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).   The report of the defendants' examining neurologist noted the existence of a limitation in the range of motion of the injured plaintiff's lumbar spine that was not adequately quantified or qualified so as to establish that it was insignificant (see Dzaferovic v. Polonia, 36 A.D.3d 652, 653, 829 N.Y.S.2d 148;  Iles v. Jonat, 35 A.D.3d 537, 538, 825 N.Y.S.2d 540;  Whittaker v. Webster Trucking Corp., 33 A.D.3d 613, 823 N.Y.S.2d 95). The affirmed medical report of the defendants' examining orthopedic surgeon set forth range of motion findings with respect to the injured plaintiff's lumbar spine, but failed to compare those findings to what is deemed normal (see Hypolite v. International Logistics Mgt., Inc., 43 A.D.3d 461, 842 N.Y.S.2d 453;  McNulty v. Buglino, 40 A.D.3d 591, 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 856, 857, 832 N.Y.S.2d 666;  Bluth v. WorldOmni Fin. Corp., 38 A.D.3d 817, 818, 832 N.Y.S.2d 640).   Since the defendants failed to satisfy their burden on this motion, it is unnecessary to consider whether the plaintiffs' submissions raised a triable issue of fact (see Dzaferovic v. Polonia, 36 A.D.3d at 653, 829 N.Y.S.2d 148;  Hypolite v. International Logistics Mgt., Inc., 43 A.D.3d 461, 842 N.Y.S.2d 453;  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).