Rosalia Cracchiolo, et al., appellants, v Michael Omerza, et al., respondents. v. << (2011)

Argued—June 3, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated February 3, 2010, as granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

Contrary to the Supreme Court's determination, the defendants failed to meet their prima facie burden of showing that the plaintiffs 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;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957).   Based on the inconsistent norms utilized in the findings of the defendants' examining orthopedist, Dr. Harvey Fishman, as to the range of motion tests for the cervical and thoracolumbosacral regions of the spine of each of the plaintiffs, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Frey v. Fedorciuc, 36 AD3d 587, 588;  Powell v. Alade, 31 AD3d 523;  see also Corcione v John Dominick Cusumano, Inc., 84 AD3d 1010).

The parties' remaining contentions either are without merit or have been rendered academic in light of our determination.

MASTRO, J.P., FLORIO, BELEN and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court