DUX v. MADDALONI

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

Stephen DUX, et al., appellants, v. Angelina MADDALONI, respondent.

Decided: May 27, 2008

REINALDO E. RIVERA, J.P., ROBERT A. LIFSON, HOWARD MILLER, EDWARD D. CARNI, and RANDALL T. ENG, JJ. Johnson Liebman, LLP, New York, N.Y. (Charles D. Liebman of counsel), for appellants. Abamont & Associates, Uniondale, N.Y. (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger [Gregory A. Cascino], of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Weber, J.), dated June 12, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Stephen Dux did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

Contrary to the Supreme Court's determination, the defendant failed to meet her prima facie burden of showing that the plaintiff Stephen Dux (hereinafter the injured 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, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In support of her motion, the defendant relied upon, inter alia, the affirmed medical report of her examining orthopedic surgeon who evaluated the injured plaintiff almost two years after the subject accident occurred.   In that report, the surgeon noted significant limitations in the range of motion of the injured plaintiff's cervical spine, lumbar spine, and left shoulder (see Jenkins v. Miled Hacking Corp., 43 A.D.3d 393, 841 N.Y.S.2d 317;  Bentivegna v. Stein, 42 A.D.3d 555, 841 N.Y.S.2d 316;  Zamaniyan v. Vrabeck, 41 A.D.3d 472, 835 N.Y.S.2d 903;  see also Brown v. Motor Veh. Acc. Indem. Corp., 33 A.D.3d 832, 822 N.Y.S.2d 784;  Smith v. Delcore, 29 A.D.3d 890, 814 N.Y.S.2d 554;  Sano v. Gorelik, 24 A.D.3d 747, 805 N.Y.S.2d 854;  Spuhler v. Khan, 14 A.D.3d 693, 789 N.Y.S.2d 228;  Omar v. Bello, 13 A.D.3d 430, 786 N.Y.S.2d 563;  Scotti v. Boutureira, 8 A.D.3d 652, 779 N.Y.S.2d 255).

Since the defendant failed to satisfy her prima facie burden, it is unnecessary to consider whether the plaintiffs' papers in opposition were sufficient to raise a triable issue of fact (see Jenkins v. Miled Hacking Corp., 43 A.D.3d 393, 841 N.Y.S.2d 317;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

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