Tuico v Maher |
2008 NY Slip Op 04904 [52 AD3d 201] [52 AD3d 201] |
June 3, 2008 |
Appellate Division, First Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Arnold Tuico, Appellant, and Edward J. Garofalo,
Appellant-Respondent, v Edward C. Maher et al., Respondents. |
Law Offices of John P. Humphreys, New York (Evy L. Kazansky of counsel), for
appellant-respondent.
Kay & Gray, Westbury (Lynn Golder of counsel), for Edward C. Maher, respondent.
Kelly, Rode & Kelly, LLP, Mineola (Susan M. Ulrich of counsel), for Jacqueline M.
Bendick, respondent. Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 5,
2006, which granted defendants' motion and cross motion for summary judgment dismissing the
complaint, unanimously reversed, on the law, without costs, the motions denied, and the
complaint reinstated.
Although defendants made a sufficient prima facie showing of entitlement to judgment on
the question of "serious injury" (Insurance Law § 5102 [d]), the expert affirmations in
response designated a numeric percentage for each plaintiff's loss of range of motion, and an
objective basis for comparing those limitations "to the normal function, purpose and use of the
affected body organ, member, function or system" (Toure v Avis Rent A Car Sys., 98
NY2d 345, 350 [2002]). Plaintiffs' experts specifically quantified the range-of-motion limits (see Desulme v Stanya, 12 AD3d
557 [2004]) and causally related them to the accident, sufficient to defeat summary
dismissal. Concur—Lippman, P.J., Saxe, Buckley and Acosta, JJ.