Cheour v. Pete & Sals Harborview Transp., Inc.

• Citation: 76 A.D.3d 989,907 N.Y.S.2d 517
• Court: New York Supreme Court Appellate Division
• Decision Date: 21 September 2010
• Parties: Theresa A. CHEOUR, appellant, v. PETE & SALS HARBORVIEW TRANSPORTATION, INC., et al., respondents.

907 N.Y.S.2d 517
76 A.D.3d 989

Theresa A. CHEOUR, appellant,
v.
PETE & SALS HARBORVIEW TRANSPORTATION, INC., et al., respondents.

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

Sept. 21, 2010.

907 N.Y.S.2d 518

Nicholas Rose, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for respondents.

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.

76 A.D.3d 989

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated November 5, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

Contrary to the Supreme Court's determination, the defendants failed to demonstrate, prima facie, 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 their motion, the defendants relied on, inter alia, the affirmed medical report of Dr. S. Farkas. In his report, Dr. Farkas, an orthopedist, noted during lumbar testing that the plaintiff had a "jog" of flexion and lateral bending, but he failed to compare those findings to what is normal ( see Spanos v. Harrison, 67 A.D.3d 893, 889 N.Y.S.2d 227; Gibson-Wallace v. Dalessandro, 58 A.D.3d 679, 872 N.Y.S.2d 156). Furthermore, Dr. Farkas noted during his examination of the plaintiff that she had significant limitations in cervical spine, left knee, and left shoulder range of motion ( see Mondevil v. Kumar, 74 A.D.3d 1295, 903 N.Y.S.2d 248; Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Quiceno v. Mendoza, 72 A.D.3d 669, 897 N.Y.S.2d 643; Giacomaro v. Wilson, 58 A.D.3d 802, 872 N.Y.S.2d 180; McGregor v. Avellaneda, 50 A.D.3d 749, 855 N.Y.S.2d 625; Wright v. AAA Constr. Servs., Inc., 49 A.D.3d 531, 855 N.Y.S.2d 149). While Dr. Farkas stated that the plaintiff presented with "extreme exaggeration of symptoms" and that the...