Chiara v. Dernago

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Mahon, J.), dated October 30, 2008, which granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither plaintiff sustained 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 plaintiffs by the defendants appearing separately and filing separate briefs, and the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) are denied.

Contrary to the Supreme Court’s determination, both of the defendants failed to meet their prima facie burdens of showing that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (s ee Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). In support of their separate motions, both defendants relied largely on the same submissions, which included the affirmed medical reports of an orthopedic surgeon who examined each plaintiff. These reports were insufficient to sustain the defendants’ respective prima facie burdens. Although the surgeon noted that the plaintiff Venetia K. Chiara had full range of motion in the cervical and lumbar regions “to all directions,” and that the plaintiff Nicholas Chiara’s cervical range of motion was “normal,” he

Since the defendants failed to meet their respective prima facie burdens, it is unnecessary to decide whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Mannix v Lisi’s Towing Serv., Inc., 67 AD3d 977 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Giammalva v Winters, 59 AD3d 595 [2009]; Stern v Oceanside School Dist., 55 AD3d 596 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.