ANTONACCI v. MANNEY

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

Kathleen ANTONACCI, et al., appellants, v. Steven P. MANNEY, et al., respondents.

Decided: July 25, 2005

HOWARD MILLER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and ROBERT A. LIFSON, JJ. Elovich & Adell, Long Beach, N.Y. (Mitchell Sommer, William K. Joseph, A. Trudy Adell, and Glenn Sabele of counsel), for appellants. Picciano & Scahill, P.C., Westbury, N.Y. (Robin Mary Heaney and Francis J. Scahill of counsel), for respondent Steven P. Manney. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y., for respondents Chrysler Financial Company, LLC, Daimler Chrysler Services North America, LLC, and Chrysler Financial Corporation.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Winslow, J.), dated November 23, 2004, which granted the motion of the defendant Steven P. Manney, and the separate motion of the defendants Chrysler Financial Company, LLC, Daimler Chrysler Services North America, LLC, and Chrysler Financial Corporation, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Kathleen Antonacci 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 by the respondents appearing separately and filing separate briefs, the motions are denied, and the complaint is reinstated.

We agree with the plaintiffs' contention that the defendants failed to make a prima facie showing that the injured plaintiff did not sustain a serious injury (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).   Although the major claim of the injured plaintiff concerned alleged significant limitations in the use of her knees, neither the defendants' orthopedist nor neurologist indicated that he had tested the functioning of the plaintiff's knees and determined that she had full use of them (see Barrett v. Jeannot, 18 A.D.3d 679, 795 N.Y.S.2d 727;  Moiseau v. Dumas-Williams, 291 A.D.2d 535, 738 N.Y.S.2d 679).   Since the defendants failed to meet their initial burdens of establishing a prima facie case, it was unnecessary “to consider whether the plaintiff[s'] papers in opposition to the defendant[s'] motion[s] were sufficient to raise a triable issue of fact” (Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  see Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

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