Antonacci v. Manney

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Winslow, J.), dated November 23, 2004, which granted the motion of the defendant Steven E Manney, and the separate motion of the defendants Chrysler Financial Company, LLC, Daimler Chrysler Services North America, LLC, and Chrysler Financial Corporation, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Kathleen Antonacci did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motions are denied, and the complaint is reinstated. We agree with the plaintiffs’ contention that the defendants failed to make a prima facie showing that the injured plaintiff did not sustain a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Although the major claim of the injured plaintiff concerned alleged significant limitations in the use of her knees, neither the defendants’ orthopedist nor neurologist indicated that he had tested the functioning of the plaintiffs knees and determined that she had full use of them (see Barrett v Jeannot, 18 AD3d 679 [2005]; Moiseau v Dumas-Williams, 291 AD2d 535 [2002]). Since the defendants failed to meet their initial burdens of establishing a prima facie case, it was unnecessary “to consider whether the plaintiffis’] papers in opposition to the defendants’] motion[s] were sufficient to raise a triable issue of fact” (Coscia v 938 Trading Corp., 283 AD2d 538, 538 [2001]; see Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.