Jean-Philippe v Brooklyn Union Gas Co.

[*1] Jean-Philippe v Brooklyn Union Gas Co. 2008 NY Slip Op 52123(U) [21 Misc 3d 131(A)] Decided on October 27, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2004-1101 K C.

Loubert Jean-Philippe, JOCELINE JEAN-PHILIPPE, JESSIE JEAN-PHILIPPE, JASMINE JEAN-PHILIPPE, an infant under the age of eighteen years old by her mother and natural guardian, JOCELINE JEAN-PHILIPPE, Plaintiffs, -and- STANLEY JEAN-PHILIPPE, an infant under the age of fourteen years old by his mother and natural guardian, JOCELINE JEAN-PHILIPPE, Respondent,

against

Brooklyn Union Gas Co. and JAMES TUCKER, JR., Appellants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered April 29, 2004. The order, insofar as appealed from as limited by the brief, denied defendants' motion for summary judgment as to plaintiff Stanley Jean-Philippe.

Order, insofar as appealed from, affirmed without costs.

In this action for damages for personal injuries arising from a motor vehicle accident, defendants moved for summary judgment on the ground, inter alia, that the infant plaintiff, Stanley Jean-Philippe, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The court below denied the motion on the ground that triable issues of fact exist.

Upon a review of the record, we find that defendants did not satisfy their initial prima facie burden of showing that Stanley Jean-Philippe did not sustain a serious injury as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 [*2]NY2d 955 [1992]). The affirmed medical reports of defendants' examining physicians failed to specify Stanley Jean-Philippe's degrees of motion for most of the observed movements. The affirmed reports stated that he showed excellent range of motion and that the range of motion of his cervical and lumbar spine was "within normal limits." Since defendants' experts failed to compare any findings to normal ranges of motion, defendants' motion for summary judgment as to Stanley Jean-Philippe should have been denied (see McKenzie v Redl, 47 AD3d 775 [2008]; Spektor v Dichy, 34 AD3d 557 [2006]; Browdame v Candura, 25 AD3d 747 [2006]; Paulino v Dedios, 24 AD3d 741 [2005]; Kennedy v Brown, 23 AD3d 625 [2005]; Baudillo v Pam Car & Truck Rental, Inc., 23 AD3d 420 [2005]) without consideration of whether said plaintiff's opposition papers raised a triable issue of fact (see Sullivan v Illoge, 50 AD3d 886 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008