FUDOL v. SULLIVAN (2007)

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, Kings County (Schmidt, J.), dated February 23, 2006, 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 since the defendants 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 Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The defendants' examining neurologist, in his affirmed medical report, noted that there were limitations in the range of motion of the plaintiff's lumbar spine upon his examination, but he did not sufficiently quantify or qualify the limitation to establish the absence of a significant limitation of motion (see McCrary v. Street, 34 A.D.3d 768, 825 N.Y.S.2d 514;  Whittaker v. Webster Trucking Corp., 33 A.D.3d 613, 823 N.Y.S.2d 95;  Yashayev v. Rodriguez, 28 A.D.3d 651, 812 N.Y.S.2d 367;  Kaminsky v. Waldner, 19 A.D.3d 370, 796 N.Y.S.2d 175).   Moreover, where this neurologist did provide a numerical quantification regarding his testing of the lumbar spine range of motion, he failed to compare those findings to the normal range of motion (see Iles v. Jonat, 35 A.D.3d 537, 825 N.Y.S.2d 540;  Mirochnik v. Ostrovskiy, 35 A.D.3d 413, 825 N.Y.S.2d 721;  Kavanagh v. Singh, 34 A.D.3d 744, 826 N.Y.S.2d 97;  Caracci v. Miller, 34 A.D.3d 515, 823 N.Y.S.2d 681;  Agathe v. Tun Chen Wang, 33 A.D.3d 737, 822 N.Y.S.2d 766;  Mondi v. Keahon, 32 A.D.3d 506, 820 N.Y.S.2d 625;  Benitez v. Mileski, 31 A.D.3d 473, 818 N.Y.S.2d 555;  Abraham v. Bello, 29 A.D.3d 497, 816 N.Y.S.2d 118;  Yashayev v. Rodriguez, 28 A.D.3d 651, 812 N.Y.S.2d 367;  Sullivan v. Dawes, 28 A.D.3d 472, 811 N.Y.S.2d 596).   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 McCrary v. Street, supra;  Iles v. Jonat, supra;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).