EDWARDS v. NEW YORK CITY TRANSIT AUTHORITY (2005)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated November 14, 2003, which denied its motion for summary judgment dismissing the complaint on the ground that the plaintiff Gerald Edwards did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, without costs or disbursements.

 Where a defendant fails to meet its initial burden of establishing a prima facie case, it becomes unnecessary to consider whether the plaintiffs' papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).   In this case, the defendant's experts examined the injured plaintiff and found that he had a full range of motion in his cervical spine.   However, neither expert “set forth the objective tests they performed” to support their statement (Zavala v. DeSantis, 1 A.D.3d 354, 355, 766 N.Y.S.2d 598;  see Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741;  Gamberg v. Romeo, 289 A.D.2d 525, 736 N.Y.S.2d 64;  Junco v. Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897).   In addition, neither expert tested the range of motion of the injured plaintiff's lumbar spine, and both experts found limitations on straight-leg raising.   Thus, the defendant failed to establish a prima facie case, and therefore, the motion for summary judgment was properly denied.