SPAHN v. WOHLMACHER

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

Judy SPAHN, respondent, v. Heidi WOHLMACHER, appellant.

Decided: June 24, 2008

REINALDO E. RIVERA, J.P., ROBERT A. LIFSON, HOWARD MILLER, EDWARD D. CARNI, and RANDALL T. ENG, JJ. Jerrold N. Cohen, Mineola, N.Y., for appellant. Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R. Bernstein of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated November 9, 2007, which denied her motion for summary judgment dismissing the complaint 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 costs.

The defendant failed to meet her 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 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 report of her examining neurologist, who examined the plaintiff on December 6, 2006, over one year after the subject accident.   During that examination, the plaintiff's lumbar spine and cervical spine were tested.   During testing of the plaintiff's lumbar spine, the defendant's examining neurologist noted that the plaintiff was able to bend forward and bring her hands down to the midthigh level.   In the supine position, the plaintiff's leg elevation was to 30 degrees bilaterally.   Despite making these findings, the defendant's examining neurologist never compared those findings to what is normal (see Page v. Belmonte, 45 A.D.3d 825, 846 N.Y.S.2d 351;  Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415;  Fleury v. Benitez, 44 A.D.3d 996, 845 N.Y.S.2d 101;  Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396).   As to the cervical spine, the defendant's examining neurologist merely stated that movements of the neck were “normal” without setting forth the objective tests used to arrive at those conclusions that the plaintiff had full range of motion in the cervical spine (see Giammanco v. Valerio, 47 A.D.3d 674, 850 N.Y.S.2d 169;  Palladino v. Antonelli, 40 A.D.3d 944, 945, 836 N.Y.S.2d 656;  Cedillo v. Rivera, 39 A.D.3d 453, 835 N.Y.S.2d 238;  McLaughlin v. Rizzo, 38 A.D.3d 856, 832 N.Y.S.2d 666;  Geba v. Obermeyer, 38 A.D.3d 597, 832 N.Y.S.2d 70;  Larrieut v. Gutterman, 37 A.D.3d 424, 832 N.Y.S.2d 44).

Since the defendant failed to meet her prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendant's motion for summary judgment were sufficient to raise a triable issue of fact (see Page v. Belmonte, 45 A.D.3d at 826, 846 N.Y.S.2d 351;  Giammanco v. Valerio, 47 A.D.3d at 675, 850 N.Y.S.2d 169;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

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