SCLAFANI v. CITY OF NEW YORK

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Supreme Court, Appellate Division, Second Department, New York.

Anthony SCLAFANI, respondent, v. CITY OF NEW YORK, et al., appellants.

Decided: October 31, 2005

THOMAS A. ADAMS, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN, PETER B. SKELOS, and MARK C. DILLON, JJ. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath of counsel), for appellants City of New York, New York City Department of Transportation, and Jose Raymond Rivera. Marshall and Bellard (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants Sam Zamoshchin and Sovereign Motor Cars, Ltd. Baron Associates, P.C., Brooklyn, N.Y. (Dhruv A. Dhavan of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants City of New York, New York City Department of Transportation, and Jose Raymond Rivera appeal, and the defendants Sam Zamoshchin and Sovereign Motor Cars, Ltd., separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated June 30, 2004, which denied their respective motions 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).

ORDERED that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

The affirmed medical reports of a neurologist and an orthopedist who examined the plaintiff approximately three years after the accident, and determined that he had no limitations or disabilities, sufficiently established a prima facie case for summary judgment in the defendants' favor (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).   However, the affirmation of the plaintiff's physician, who, on the basis of recent computerized range-of-motion testing, determined that the plaintiff had sustained restrictions in motion, was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury (see Kraemer v. Henning, 237 A.D.2d 492, 655 N.Y.S.2d 96).

Accordingly, the Supreme Court properly denied the defendants' respective motions for summary judgment.

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