Cracchiolo v. Omerza

Contrary to the Supreme Court’s determination, the defendants failed to meet their prima facie burden of showing that the plaintiffs 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, 956-957 [1992]). Based on the inconsistent 675 norms utilized, in the findings of the defendants’ examining orthopedist, Dr. Harvey Fishman, as to the range of motion tests for the cervical and thoracolumbosacral regions of the spine of each of the plaintiffs, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Frey v Fedorciuc, 36 AD3d 587, 588 [2007]; Powell v Made, 31 AD3d 523 [2006]; see also Corcione v John Dominick Cusumano, Inc., 84 AD3d 1010 [2011]). The parties’ remaining contentions either are without merit or have been rendered academic in light of our determination. Mastro, J.E, Florio, Belen and Chambers, JJ., concur.