GRANT v. PARSONS COACH LTD (2004)

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Queens County (Dye, J.), dated September 11, 2003, as denied their cross 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 defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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 conclusion of the defendants' examining physician that the plaintiff had no disability or impairment was directly contradicted by his report of the plaintiff's examination, which recorded objectively-measured limitations of range of motion of the plaintiff's cervical and lumbar spine and left shoulder.   Since the defendants failed to establish a prima facie case, “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” (Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  see Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

Accordingly, the Supreme Court properly denied the defendants' cross motion for summary judgment.