Domenica Ilardo, appellant, v. NEW YORK CITY TRANSIT AUTHORITY (2006)

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiff Domenica Ilardo appeals from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated March 18, 2005, as granted that branch of the defendants' motion which was for summary judgment dismissing her causes of action on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was for summary judgment dismissing the causes of action asserted by the plaintiff Domenica Ilardo is denied, and those causes of action are reinstated.

 The defendants failed to make a prima facie showing that the appellant did not sustain a serious injury (see Insurance Law § 5102[d];  see generally, Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281;  Meely v. 4 G's Truck Renting Co., 16 A.D.3d 26, 789 N.Y.S.2d 277).   The affirmation of the defendants' examining orthopedist failed to set forth the objective tests he performed in concluding that the appellant had a normal range of motion.   Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not address the sufficiency of the appellant's opposition papers (see Nembhard v. Delatorre, 16 A.D.3d 390, 391, 791 N.Y.S.2d 144;  Minlionica v. Shahabi, 296 A.D.2d 569, 570, 745 N.Y.S.2d 715).

 We note that to the extent that the appellant has raised issues in her brief concerning the plaintiffs' entitlement to summary judgment on the issue of liability, we do not reach those issues.   The notice of appeal specified that the appeal was limited to that part of the order which granted the defendants' motion for summary judgment.  “An appeal from only part of an order constitutes a waiver of the right to appeal from other parts of that order” (532 Realty Assoc. v. Spearhead Sys., 1 A.D.3d 476, 477, 767 N.Y.S.2d 275;  see Clark v. 345 E. 52nd St. Owners, 245 A.D.2d 410, 413, 666 N.Y.S.2d 207).