STEUBER v. LEBLANC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (David S. Zuckerman, J.), dated May 4, 2022, and (2) a judgment of the same court entered June 1, 2022.  The order granted the separate motions of the defendants Ronald LeBlanc and Ronald Browning and the defendants Charles Krafft, Hill Construction and Excavating, LLC, and Hill Construction Co., LLC, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.  The judgment, upon the order, is in favor of the defendants Ronald LeBlanc and Ronald Browning and against the plaintiff dismissing the complaint insofar as asserted against the defendants Ronald LeBlanc and Ronald Browning.

ORDERED that the appeal from so much of the order as granted the motion of the defendants Ronald LeBlanc and Ronald Browning is dismissed;  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, and the motion of the defendants Charles Krafft, Hill Construction and Excavating, LLC, and Hill Construction Co., LLC, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident is denied;  and it is further,

ORDERED that the judgment is reversed, on the law, the motion of the defendants Ronald LeBlanc and Ronald Browning for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident is denied, the complaint is reinstated insofar as asserted against the defendants Ronald LeBlanc and Ronald Browning, and the order is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants appearing separately and filing separate briefs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident.  The defendants Ronald LeBlanc and Ronald Browning and the defendants Charles Krafft, Hill Construction and Excavating, LLC, and Hill Construction Co., LLC, separately moved for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.  In an order dated May 4, 2022, the Supreme Court granted the separate motions.  On June 1, 2022, a judgment was entered in favor of LeBlanc and Browning and against the plaintiff dismissing the complaint insofar as asserted against LeBlanc and Browning.  The plaintiff appeals from the order and the judgment.

Initially, the appeal from so much of the order as granted the motion of LeBlanc and Browning for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action in favor of LeBlanc and Browning (see Matter of Aho, 39 N.Y.2d 241, 248).  The issues raised on the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (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 their separate motions, the defendants submitted the independent medical examination report of Michael R. Rosen.  Rosen set forth range-of-motion findings for the cervical region of the plaintiff's spine but failed to compare those findings to what is normal (see Carrier v. Gleba, 213 AD3d 629, 629–630;  Pupko v. Hassan, 149 AD3d 988, 989;  Starkey v. Curry, 94 AD3d 866, 866).  Furthermore, Rosen failed to demonstrate, through quantitative or qualitative testing, that the plaintiff did not sustain a serious injury to his wrists or right shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d).  The defendants also failed to establish, prima facie, that the plaintiff's injuries were not caused by the accident.  Rosen's conclusion that the injury to the cervical region of the plaintiff's spine was degenerative was vague and conclusory (see McGee v. Bronner, 188 AD3d 1033, 1035;  Pupko v. Hassan, 149 AD3d at 989;  Rivera v. Ramos, 132 AD3d 655, 655).

Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Doubleday v. Ferdous, 207 AD3d 522, 523;  Che Hong Kim v. Kossoff, 90 AD3d 969, 969).

Accordingly, the Supreme Court should have denied the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.

The parties' remaining contentions are academic.

BARROS, J.P., GENOVESI, CHAMBERS and VENTURA, JJ., concur.