Appellate Division of the Supreme Court of New York, Second DepartmentMay 2, 2006
29 A.D.3d 497 (N.Y. App. Div. 2006)
29 A.D.3d 497816 N.Y.S.2d 1182006 N.Y. Slip Op. 3517


May 2, 2006.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated December 14, 2004, which granted the motion of the defendant Gilberto Sanchez, and the separate motion of the defendants Febe Bello and Febe Mislang, 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).

Dominick W. Lavelle, Mineola, N.Y. (Susan R. Nudelman of counsel), for appellant.

Kelly, Rode Kelly, LLP, Mineola, N.Y. (Stephanie Visconti of counsel), for respondents Febe Bello and Febe Mislang.

Leahey Johnson, P.C., New York, N.Y. (Peter James Johnson, Peter James Johnson, Jr., James P. Tenney, and Joanne Filiberti of counsel), for respondent Gilberto Sanchez.

Before: Miller, J.P., Santucci, Rivera and Lifson, JJ., concur.

Ordered that the order is reversed, on the law, with one bill of costs, the motions are denied, and the complaint is reinstated.

The motions should have been denied as the defendants failed to establish their prima facie entitlement to summary judgment in their favor. Although the report of an orthopedist for the defendant Gilberto Sanchez set forth in degrees the results of his range of motion testing of the plaintiff, he did not compare those findings to a normal range of motion. "Thus, the defendants' proof failed to objectively demonstrate that the plaintiff did not suffer a permanent consequential or significant limitation of use of [her] cervical as a result of the subject accident" ( Aronov v. Leybovich, 3 AD3d 511, 512; see also Claude v. Clements, 301 AD2d 554).

In light of our determination, the remaining issues have been rendered academic.