McCRARY v. STREET

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

Christopher McCRARY, et al., appellants, v. Monique STREET, et al., respondents.

Decided: November 28, 2006

THOMAS A. ADAMS, J.P., GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, and ROBERT A. LIFSON, JJ. Siben & Ferber, Hauppauge, N.Y. (Kenneth Ording of counsel), for appellants. Brand Glick & Brand, P.C., Garden City, N.Y. (Kenneth M. Finkelstein of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated May 27, 2005, as granted that branch of the defendants' motion which was for summary dismissing the complaint on the ground that the plaintiff Christopher McCrary 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 that branch of the defendants' motion which was for summary judgment dismissing the complaint is denied.

The defendants failed to make a prima facie showing that the injured plaintiff, Christopher McCrary, 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmed medical report of the defendants' examining neurologist noted that there was a limitation in the range of motion of the injured plaintiff's neck “on turning,” but did not sufficiently quantify the limitation to establish that it was insignificant (see Whittaker v. Webster Trucking Corp., 33 A.D.3d 613, 823 N.Y.S.2d 95;  Connors v. Flaherty, 32 A.D.3d 891, 822 N.Y.S.2d 555;  Cassandra v. Dumond, 31 A.D.3d 476, 818 N.Y.S.2d 552;  Kaminsky v. Waldner, 19 A.D.3d 370, 796 N.Y.S.2d 175).   Furthermore, the examining neurologist merely stated that the range of motion of the injured plaintiff's neck was otherwise “full in all planes,” without setting forth the objective test or tests performed to support this conclusion (see Whittaker v. Webster Trucking Corp., supra;  Murdakhayeva v. Blackstone Limo, 32 A.D.3d 1002, 820 N.Y.S.2d 898;  Russo v. Ross, 32 A.D.3d 386, 821 N.Y.S.2d 101;  Ilardo v. New York City Tr. Auth., 28 A.D.3d 610, 814 N.Y.S.2d 201).   Since the defendants failed to satisfy their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Whittaker v. Webster Trucking Corp., supra;  Connors v. Flaherty, supra;  Cassandra v. Dumond, supra;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

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