WELCH v. PENSKE TRUCK LEASING CORP (2006)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Nicolai, J.), entered October 18, 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, with costs.

Although we affirm the order of the Supreme Court, we do so on different grounds than those relied upon by that court.   Contrary to the Supreme Court's determination, 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 affirmed medical report of the defendants' examining physician indicated that magnetic resonance imaging of the plaintiff's cervical and lumbar spine showed a herniation at L5-S1 and bulging discs from C4-5 through C6-7. Notably, the report of the defendants' examining physician specified the degrees of range of motion in the plaintiff's cervical and lumbar spine without comparing those findings to the normal range of motion (see Browdame v. Candura, 25 A.D.3d 747, 807 N.Y.S.2d 658;  Baudillo v. Pam Car & Truck Rental, Inc., 23 A.D.3d 420, 803 N.Y.S.2d 922;  Aronov v. Leybovich, 3 A.D.3d 511, 512, 770 N.Y.S.2d 741).   Since the defendants failed to meet their initial burden of establishing a prima facie case, the sufficiency of the plaintiff's opposition papers need not be considered (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).