GIACOMARO v. WILSON

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

Carol A. GIACOMARO, appellant, v. Ralph R. WILSON, et al., respondents.

Decided: January 27, 2009

ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, WILLIAM E. McCARTHY and ARIEL E. BELEN, JJ. Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Gregory M. LaSpina and Stephen J. Smith of counsel), for appellant. Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill of counsel), for respondent Ralph R. Wilson. Epstein, Rayhill & Frankini, Woodbury, N.Y. (Michael Callari III of counsel), for respondents Brian J. Scelfo and Mark S. Scelfo.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered December 14, 2007, which granted the motion of the defendant Ralph R. Wilson and the separate motion of the defendants Brian J. Scelfo and Mark S. Scelfo 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 reversed, on the law, with one bill of costs payable to the plaintiff, and the motion of the defendant Ralph R. Wilson and the separate motion of the defendants Brian J. Scelfo and Mark S. Scelfo for summary judgment dismissing the complaint insofar as asserted against them are denied.

The Supreme Court erred in determining that the defendants met their prima facie burdens of showing that the 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).   Here, the defendants, who submitted the same evidence in support of their respective motions, relied, inter alia, on the affirmed medical report of Dr. Vartkes Khachadurian.   That doctor, an orthopedic surgeon, examined the plaintiff on April 11, 2007, and noted in his report a significant limitation in the range of motion of the plaintiff's right shoulder (see Hurtte v. Budget Roadside Care, 54 A.D.3d 362, 861 N.Y.S.2d 949;  Perry v. Brusini, 53 A.D.3d 478, 859 N.Y.S.2d 565;  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).   Since the defendants failed to meet their respective prima facie burdens, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Hurtte v. Budget Roadside Care, 54 A.D.3d 362, 861 N.Y.S.2d 949;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

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