CHUI FONG LAM v. SPRING SCAFFOLDING INC (2006)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated February 17, 2005, which 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, without costs or disbursements.

While we affirm the order of the Supreme Court, we do so on a ground other than that relied upon by the Supreme Court.   The defendants did not satisfy their initial prima facie burden of showing 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 affirmed medical report of the defendants' examining orthopedist merely noted that the plaintiff had “full” range of motion in the cervical and lumbosacral regions of her spine, as well as her left shoulder, without setting forth the objective test or tests performed supporting these conclusions (see Nembhard v. Delatorre, 16 A.D.3d 390, 791 N.Y.S.2d 144;  Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741).   Moreover, while the affirmed medical report of the defendants' examining neurologist set forth findings concerning the range of motion of the cervical and thoracolumbar regions of the plaintiff's spine, those findings were not compared to the normal range of motion (see Sullivan v. Dawes, 28 A.D.3d 472, 811 N.Y.S.2d 596;  Browdame v. Candura, 25 A.D.3d 747, 807 N.Y.S.2d 658;  Paulino v. Dedios, 24 A.D.3d 741, 807 N.Y.S.2d 397;  Kennedy v. Brown, 23 A.D.3d 625, 805 N.Y.S.2d 408;  Baudillo v. Pam Car & Truck Rental, 23 A.D.3d 420, 803 N.Y.S.2d 922;  Manceri v. Bowe, 19 A.D.3d 462, 798 N.Y.S.2d 441;  Aronov v. Leybovich, 3 A.D.3d 511, 770 N.Y.S.2d 741).

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to consider whether the plaintiff's papers, submitted in opposition, raised a triable issue of fact (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).