VAZQUEZ v. BASSO (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated February 7, 2005, which granted the defendant's 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 reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendants failed to establish their prima facie burden of demonstrating 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 defendants' examining orthopedist merely stated in his affirmed medical report that upon physical examination, the plaintiff “had full range of motion of all segments of the spine extending from the cervical to [the] lumbosacral region,” without setting forth the objective medical testing performed to support his conclusion (see Nembhard v. Delatorre, 16 A.D.3d 390, 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 defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to reach the question of whether the plaintiff's papers were sufficient to raise a triable issue of fact (see Facci v. Kaminsky, 18 A.D.3d 806, 795 N.Y.S.2d 457;  Rich-Wing v. Baboolal, 18 A.D.3d 726, 795 N.Y.S.2d 706;  Nembhard v. Delatorre, supra;  Lesane v. Tejada, 15 A.D.3d 358, 790 N.Y.S.2d 44;  Hennessy v. Verizon N.Y., 8 A.D.3d 619, 778 N.Y.S.2d 909;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).