Roc v. Domond

• Decision Date: 18 October 2011
• Citation: 88 A.D.3d 862,2011 N.Y. Slip Op. 07406,931 N.Y.S.2d 522
• Parties: Edouard ROC, et al., appellants,v.Marie DOMOND, defendant,Franck Vilsaint, respondent.(and a third-party action).
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 862

931 N.Y.S.2d 522

2011 N.Y. Slip Op. 07406

Edouard ROC, et al., appellants,

v.Marie DOMOND, defendant,Franck Vilsaint, respondent.(and a third-party action).

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

Oct. 18, 2011.

OPINION TEXT STARTS HEREHarmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for appellants.O'Connor, McGuiness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L. Effinger of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated November 17, 2009, as granted the motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

The defendant Franck Vilsaint failed to meet his prima facie burden of showing that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( 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 his motion, Vilsaint relied upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell, the expert orthopedic surgeon who examined the plaintiffs on January 26, 2009. During those examinations, Dr. Purcell noted significant limitations in the range of motion in the cervical and thoracolumbar regions of the plaintiff Edison Charles' spine, and significant limitations in the range of motion in the cervicothoracic region of the plaintiff Edouard Roc's spine ( see Artis v. Lucas, 84 A.D.3d 845, 921 N.Y.S.2d 910; Ortiz v. Orlov, 76 A.D.3d 1000, 1001, 907 N.Y.S.2d 688; Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517; Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Leopold v. New York City Tr. Auth., 72 A.D.3d 906, 899 N.Y.S.2d 626). Although Dr. Purcell indicated that the “[d]iminished range of motion” noted was “subjective” in nature, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the noted limitations in the plaintiffs' respective ranges of motion were self-imposed ( see Artis v. Lucas, 84 A.D.3d at 845, 921 N.Y.S.2d 910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632; Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45; Torres v. Garcia, 59 A.D.3d 705, 706, 874 N.Y.S.2d 527; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366).

Since Vilsaint...