TOLSTOCHEEV v. BAJROVIC (2006)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated January 14, 2005, which denied his 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.

Contrary to the defendant's contention, the Supreme Court properly denied his motion for summary judgment dismissing the complaint on the ground that he failed to establish, prima facie, 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 defendant's examining neurologist and orthopedist both failed to set forth the objective tests used to determine that the plaintiff did not have any range of motion restrictions (see Nembhard v. Delatorre, 16 A.D.3d 390, 391, 791 N.Y.S.2d 144;  Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741;  Gamberg v. Romeo, 289 A.D.2d 525, 736 N.Y.S.2d 64;  Junco v. Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897).   Since the defendant failed to establish his initial burden on the motion, it is unnecessary to consider whether the plaintiff's papers were sufficient to raise a triable issue of fact (see Facci v. Kaminsky, 18 A.D.3d 806, 807, 795 N.Y.S.2d 457;  Rich-Wing v. Baboolal, 18 A.D.3d 726, 727, 795 N.Y.S.2d 706;  Nembhard v. Delatorre, supra;  Lesane v. Tejada, 15 A.D.3d 358, 790 N.Y.S.2d 44).