MENDOLIA v. HARRIS (2005)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), dated February 9, 2004, as granted the defendant's cross motion for summary judgment dismissing the complaint on the ground that he 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, the cross motion is denied, and the complaint is reinstated.

The defendant 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).   Although the defendant's examining physician concluded that there was no neurological disability, he made no findings with respect to the lumbar spine, and merely stated that the neck was “supple” (see Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741;  Zavala v. DeSantis, 1 A.D.3d 354, 766 N.Y.S.2d 598;  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 make out a prima facie case, we need not consider the alleged insufficiency of the plaintiff's papers (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;   Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

Accordingly, the Supreme Court erred in granting the defendant's cross motion for summary judgment dismissing the complaint.