MEIHENG QU v. DOSHNA (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated July 3, 2003, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them 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 reversed, on the law, with one bill of costs, the motions are denied, and the complaint is reinstated.

The defendants failed to establish prima facie their entitlement to judgment as a matter of law dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Junco v. Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897).   The affirmed medical reports of the defendants' examining physicians failed to set forth the objective tests that were performed to support their conclusory assertions of normality (see Black v. Robinson, 305 A.D.2d 438, 439, 759 N.Y.S.2d 741;  Minlionica v. Shahabi, 296 A.D.2d 569, 570, 745 N.Y.S.2d 715;  Junco v. Ranzi, supra ).   Those physicians also did not compare their findings of the plaintiff's ranges of motion to the normal ranges of motion of the affected body parts (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 647 N.E.2d 105).   Thus, the sufficiency of the plaintiff's opposition papers need not be considered (see Gamberg v. Romeo, 289 A.D.2d 525, 736 N.Y.S.2d 64;  Junco v. Ranzi, supra ).