MOSHEYEV v. PILEVSKY (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated October 16, 2002, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he 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, the motion is denied, and the complaint is reinstated.

The Supreme Court improvidently exercised its discretion in entertaining the defendant's belated motion for summary judgment (see CPLR 3212[a];  cf.   Lee v. City of New York, 307 A.D.2d 256, 762 N.Y.S.2d 269).   In any event, the defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury as a result of the subject motor vehicle accident.   The defendant submitted his examining orthopedist's medical report which specified certain degrees of limitation of range of motion in the plaintiff's cervical and lumbosacral spines.   The orthopedist failed to set forth the objective tests he performed to support his findings that the plaintiff had no ongoing disability (see Franchini v. Palmieri, 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282;  D'Angelo v. Guerra, 307 A.D.2d 306, 307, 762 N.Y.S.2d 508;  Black v. Robinson, 305 A.D.2d 438, 439, 759 N.Y.S.2d 741;  Gamberg v. Romeo, 289 A.D.2d 525, 736 N.Y.S.2d 64).   Since the defendant failed to establish his entitlement to judgment as a matter of law, the motion should have been denied (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).