Benitez v. Mileski
Decision Date | 11 July 2006 |
Docket Number | 2005-07223.,2005-09956. |
Citation | 818 N.Y.S.2d 555,2006 NY Slip Op 05574,31 A.D.3d 473 |
Parties | ROBERTO C. BENITEZ et al., Respondents, v. RONALD P. MILESKI et al., Appellants. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the plaintiffs.
The original determination in the order dated June 22, 2005 was proper, but we affirm on grounds different from those relied upon by the Supreme Court. The defendants failed to establish that the plaintiffs 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The defendants' examining orthopedic surgeon, who examined each of the plaintiffs on October 26, 2004, set forth in his affirmed medical reports his findings with respect to their ranges of motion in their cervical and lumbar spines, but failed to compare those findings to what is normal (see Browdame v Candura, 25 AD3d 747 [2006]; Paulino v Dedios, 24 AD3d 741 [2005]; Aronov v Leybovich, 3 AD3d 511 [2004]). Moreover, the defendants' examining neurologist, who examined the plaintiffs on November 10, 2004, merely stated in her reports that upon examination "movements of the neck are normal in all directions" without setting forth the objective testing used to arrive at those conclusions (see Murray v Hartford, 23 AD3d 629 [2005], lv denied 6 NY3d 713 [2006]...
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Galatro v. Kwintner, 2020-34736
...not be considered as a basis for summary judgment (Mondi v. Keahon, 32 A.D.3d 506, 820 N.Y.S.2d 625 [2d Dept 2006]; Benitez v. Mileski, 31 A.D.3d 473, 818 N.Y.S.2d 555 [2d Dept. 2006]; Chiara v. Dernago, 70 A.D.3d 746, 894 N.Y.S.2d 129 [2d Dept. 2010]; Schmidt v. Meehan, 97 A.D.3d 940, 948 ......
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Galatro v. Kwintner
... ... summary judgment (Mondi v. Keahon, 32 A.D.3d 506, ... 820 N.Y.S.2d 625 [2d Dept 2006]; Benitez v. Mileski, ... 31 A.D.3d 473, 818 N.Y.S.2d 555 [2d Dept. 2006]; Chiara ... v. Dernago, 70 A.D.3d 746, 894 N.Y.S.2d 129 [2d Dept ... ...
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