Edouard Roc, et al., appellants, v. Marie Domond, defendant, Franck Vilsaint, respondent. (and a third-party action) (2011)

Argued—October 3, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated November 17, 2009, as granted the motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him 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 motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

The defendant Franck Vilsaint failed to meet his prima facie burden of showing that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957).   In support of his motion, Vilsaint relied upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell, the expert orthopedic surgeon who examined the plaintiffs on January 26, 2009.   During those examinations, Dr. Purcell noted significant limitations in the range of motion in the cervical and thoracolumbar regions of the plaintiff Edison Charles' spine, and significant limitations in the range of motion in the cervicothoracic region of the plaintiff Edouard Roc's spine (see Artis v. Lucas, 84 AD3d 845;  Ortiz v. Orlov, 76 AD3d 1000, 1001;  Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989;  Smith v. Hartman, 73 AD3d 736;  Leopold v. New York City Tr. Auth., 72 AD3d 906).   Although Dr. Purcell indicated that the “[d]iminished range of motion” noted was “subjective” in nature, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the noted limitations in the plaintiffs' respective ranges of motion were self-imposed (see Artis v. Lucas, 84 AD3d at 845;  Iannello v. Vazquez, 78 AD3d 1121;  Granovskiy v. Zarbaliyev, 78 AD3d 656;  cf.  Perl v. Meher, 74 AD3d 930;  Bengaly v. Singh, 68 AD3d 1030, 1031;  Moriera v. Durango, 65 AD3d 1024, 1024–1025;  Torres v. Garcia, 59 AD3d 705, 706;  Busljeta v. Plandome Leasing, Inc., 57 AD3d 469).

Since Vilsaint failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue of fact (see Artis v. Lucas, 84 AD3d at 846;  Iannello v. Vazquez, 78 AD3d at 1121;  Ortiz v. Orlov, 76 AD3d at 1001;  Bengaly v. Singh, 68 AD3d at 1031;  Coscia v. 938 Trading Corp., 283 A.D.2d 538).

SKELOS, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court