KENNEDY v. BROWN (2005)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated December 14, 2004, which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The reports of the defendant's examining physician largely failed to set forth the objective tests which were performed to support his conclusion that neither of plaintiffs suffered from any limitation of range of motion (see Zavala v. DeSantis, 1 A.D.3d 354, 766 N.Y.S.2d 598;  Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741;  Urbanski v. Mulieri, 287 A.D.2d 710, 732 N.Y.S.2d 89).   In addition, although the doctor “ascribe[s] the degree of range of motion in certain areas to some objective testing, he does not compare [either of the plaintiffs'] range of motion with a normal range of motion” (Bent v. Jackson, 15 A.D.3d 46, 49, 788 N.Y.S.2d 56;  see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   Accordingly, under these circumstances, the defendant failed to make a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) (see toure v. avis rent a car sys., supra;   bent v. jackson, supra;  Urbanski v. Mulieri, supra ).   Consequently, the burden never shifted to the plaintiffs to raise a triable issue of fact, and we need not consider the sufficiency of the plaintiffs' opposition to the motion (see Trantel v. Rothenberg, 286 A.D.2d 325, 729 N.Y.S.2d 158;   Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470, 724 N.Y.S.2d 635).

Thus, the motion for summary judgment was properly denied (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).