Mendola v. Demetres

212 A.D.2d 515, 622 N.Y.S.2d 309, 1995 N.Y. App. Div. LEXIS 1096

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants Beverly Rathgeber and Adam G. Rothman appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated June 25, 1993, as denied their motion for summary judgment dismissing the complaint insofar as it is asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellants’ contention, the Supreme Court properly denied their motion for summary judgment, holding that they failed to establish that the plaintiff Angel Mendola did not sustain a "serious injury” within the meaning of Insurance Law § 5102 (d) (see generally, Gaddy v Eyler, 79 NY2d 955). In support of their motion for summary judgment, the appellants submitted reports from the injured plaintiffs treating physicians. One of these reports, by Dr. Joseph Amodei, revealed that the injured plaintiffs range of motion of the thoraco/lumbar spine was limited in all planes of movement and supported this conclusion by specific measurements concerning these limitations (see, Conde v Eric Serv. Corp., 158 AD2d 651; cf., Tipping-Cestari v Kilkenny, 174 AD2d 663). Accordingly, the appellants’ motion papers failed to establish a prima facie case that Ms. Mendola’s injuries were not serious. Mangano, P. J., O’Brien, Pizzuto and Florio, JJ., concur.