33 A.D.3d 613
N.Y. App. Div.
2006

Joseph Whittaker, Respondent, v Webster Trucking Corp. et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, Second Department

823 N.Y.S.2d 95 | 25 A.D.3d 613

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), dated January 21, 2005, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint on the ground that they failed to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see ; ). The affirmed medical reports of the defendants’ examining orthopedic surgeon and neurologist merely noted that the plaintiff had a full range of motion in his cervical spine without setting forth the objective test or tests performed supporting their conclusions (see ; ). Moreover, the defendants’ examining orthopedic surgeon, in his affirmed medical report, also stated that there was a limitation in the range of motion of the plaintiff‘s lumbar spine but did not sufficiently quantify the limitation to establish the absence of a significant limitation of motion (see ). Since the defendants failed to satisfy their prima facie burden, it is unnecessary to consider whether the plaintiff‘s papers in opposition were sufficient to raise a triable issue of fact (see ). Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.