RUSSO v. COOKE (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (LaCava, J.), entered November 10, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

The plaintiff claims that she injured her lower back in the subject accident and a magnetic resonance imaging scan indicated a disc herniation at L4-5. However, the affirmed medical report of the defendants' examining neurologist did not reflect that he ever tested the range of motion of that region of the plaintiff's body, although he did test the range of motion of the plaintiff's cervical spine (see DeJesus v. Tanenbaum, 29 A.D.3d 852, 814 N.Y.S.2d 749;   Beyel v. Console, 25 A.D.3d 636, 811 N.Y.S.2d 687;  Edwards v. New York City Tr. Auth., 17 A.D.3d 628, 794 N.Y.S.2d 109).   Under the circumstances, the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law.   In view of the foregoing, it is not necessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see DeJesus v. Tanenbaum, supra;  Beyel v. Console, supra;  Edwards v. New York City Tr. Auth., supra;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).