Schacker v. County of Orange

Appellate Division of the Supreme Court of New York

Schacker v. County of Orange

33 A.D.3d 903, 822 N.Y.S.2d 777

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 24, 2006

StatusPublished

Cited by8 cases

This text of 33 A.D.3d 903 (Schacker v. County of Orange) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schacker v. County of Orange, 33 A.D.3d 903, 822 N.Y.S.2d 777 (N.Y. Ct. App. 2006).

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Opinion

In an action, inter alia, to recover damages for personal [904]*904injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated November 4, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In support of their motion, the defendants relied upon, among other things, the affidavit of Dr. Robert Hendler, an orthopedist, who examined the plaintiff on April 21, 2003. Dr. Hendler, in discussing range of motion testing performed on the plaintiff on that date, merely stated that such testing revealed “full range of motion” of the cervical and lumbar spine, as well as the plaintiffs shoulders. Dr. Hendler failed to set forth the objective testing he performed in order to come to the conclusion that the plaintiff did not sustain any limitations in range of motion as a result of the subject accident (see llardo v New York City Tr. Auth., 28 AD3d 610, 611 [2006]; Kelly v Rehfeld, 26 AD3d 469, 470 [2006]; Nembhard v Delatorre, 16 AD3d 390, 391 [2005]; Black v Robinson, 305 AD2d 438, 439 [2003]). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not address the sufficiency of the plaintiffs opposition papers (see Nembhard v Delatorre, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Florio, J.P., Crane, Luciano, Spolzino and Covello, JJ., concur.

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In an action, inter alia, to recover damages for personal [904]*904injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated November 4, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In support of their motion, the defendants relied upon, among other things, the affidavit of Dr. Robert Hendler, an orthopedist, who examined the plaintiff on April 21, 2003. Dr. Hendler, in discussing range of motion testing performed on the plaintiff on that date, merely stated that such testing revealed “full range of motion” of the cervical and lumbar spine, as well as the plaintiffs shoulders. Dr. Hendler failed to set forth the objective testing he performed in order to come to the conclusion that the plaintiff did not sustain any limitations in range of motion as a result of the subject accident (see llardo v New York City Tr. Auth., 28 AD3d 610, 611 [2006]; Kelly v Rehfeld, 26 AD3d 469, 470 [2006]; Nembhard v Delatorre, 16 AD3d 390, 391 [2005]; Black v Robinson, 305 AD2d 438, 439 [2003]). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not address the sufficiency of the plaintiffs opposition papers (see Nembhard v Delatorre, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Florio, J.P., Crane, Luciano, Spolzino and Covello, JJ., concur.

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Bluebook (online)

33 A.D.3d 903, 822 N.Y.S.2d 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schacker-v-county-of-orange-nyappdiv-2006.

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