LAMB v. RAJINDER (2008)

Supreme Court, Appellate Division, First Department, New York.

Michelle LAMB, Plaintiff-Respondent, v. Singh RAJINDER, et al., Defendants-Appellants.

Decided: May 01, 2008

MAZZARELLI, J.P., FRIEDMAN, SWEENY, MOSKOWITZ, JJ.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellants. George Poulos, Astoria, for respondent.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered November 29, 2007, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to meet their initial burden of establishing, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The affirmed report of defendants' examining neurologist failed to set forth the objective tests performed supporting his claims that there was no limitation of range of motion, and their otologist's affirmed report, finding, inter alia, that plaintiff's external auditory canals and tympanic membranes were within normal limits, suffered from the same infirmity (see Nix v. Yang Gao Xiang, 19 A.D.3d 227, 798 N.Y.S.2d 5 [2005] ). Defendants' failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiff's opposition to the motion (see Offman v. Singh, 27 A.D.3d 284, 813 N.Y.S.2d 56 [2006] ).

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