SIMANTOV v. KIPPS TAXI INC (2009)

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered July 14, 2009, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. The range of motion findings of defendants' neurologist, who had not reviewed any of plaintiff's medical records, were not probative since they were not stated to be based on objective tests (see Linton v. Nawaz, 62 A.D.3d 434, 438-439, 879 N.Y.S.2d 82 [2009]; Glynn v. Hopkins, 55 A.D.3d 498, 867 N.Y.S.2d 391 [2008] ), and their radiologist failed to address a number of the injuries claimed in the bill of particulars (see Menezes v. Khan, 67 A.D.3d 654, 889 N.Y.S.2d 54 [2d Dept. 2009]; Delayhaye v. Caledonia Limo & Car Serv., Inc., 61 A.D.3d 814, 815, 877 N.Y.S.2d 438 [2009] ). Furthermore, defendants only addressed plaintiff's claimed 90/180 day disability in reply (see Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562, 582 N.Y.S.2d 712 [1992] ).

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] ).