KOVALENKO v. GENERAL ELECTRIC CAPITAL AUTO LEASE INC (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Jones, J.), dated August 18, 2005, which granted the separate motions of the defendant General Electric Capital Auto Lease, Inc, and the defendant Igor Shafran for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and dismissed the complaint.

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

The defendants failed to make prima facie showings 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In their attempts to make prima facie showings, the defendants relied on the same submissions.   The affirmed medical report of an orthopedist who examined the plaintiff on February 28, 2005, set forth the orthopedist's findings with respect to the plaintiff's cervical and lumbar spine ranges of motion, yet the orthopedist failed to compare those findings to the normal ranges of motion (see Iles v. Jonat, 35 A.D.3d 537, 825 N.Y.S.2d 540;  Mirochnik v. Ostrovskiy, 35 A.D.3d 413, 825 N.Y.S.2d 721;  Kavanagh v. Singh, 34 A.D.3d 744, 826 N.Y.S.2d 97;  Caracci v. Miller, 34 A.D.3d 515, 823 N.Y.S.2d 681;  Agathe v. Tun Chen Wang, 33 A.D.3d 737, 738, 822 N.Y.S.2d 766).   Moreover, in this same report the orthopedist also noted the existence of a limitation in the range of motion of the plaintiff's lumbar spine without sufficient quantification or qualification to establish the absence of a significant limitation of motion (see McCrary v. Street, 34 A.D.3d 768, 825 N.Y.S.2d 514;  Whittaker v. Webster Trucking Corp., 33 A.D.3d 613, 823 N.Y.S.2d 95;  Connors v. Flaherty, 32 A.D.3d 891, 893, 822 N.Y.S.2d 555;  Kaminsky v. Waldner, 19 A.D.3d 370, 371, 796 N.Y.S.2d 175).

Furthermore, in support of their respective motions, the defendants submitted reports prepared by, among others, the plaintiff's treating osteopath, indicating that the plaintiff exhibited restricted ranges of motion in his cervical and lumbar spine and that the injuries which the plaintiff sustained were the result of the subject motor vehicle accident (see Campbell v. Vakili, 30 A.D.3d 457, 818 N.Y.S.2d 134;  McCluskey v. Aguilar, 10 A.D.3d 388, 389, 781 N.Y.S.2d 130).

Since the defendants failed to meet their prima facie burdens, we need not consider the sufficiency of the papers submitted in opposition to the motions (see McCrary v. Street, supra;  Kavanagh v. Singh, supra;  Campbell v. Vakili, supra;  Facci v. Kaminsky, 18 A.D.3d 806, 807, 795 N.Y.S.2d 457;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

Accordingly, the defendants' motions should have been denied.