Diorio v. Butler

Contrary to the Supreme Court’s determination, the defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury to her right hand 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]). The affirmed medical report of the defendants’ examining hand surgeon concluded that the subject accident aggravated a pre-existing arthritic condition in the plaintiffs right thumb, and noted limitations in her range of motion. However, the hand surgeon failed to compare the…