PAULINO v. DEDIOS

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Supreme Court, Appellate Division, Second Department, New York.

Jose PAULINO, appellant, v. Juan DEDIOS, et al., respondents.

Decided: December 27, 2005

THOMAS A. ADAMS, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN, PETER B. SKELOS, and MARK C. DILLON, JJ. Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellant. Cullen and Dykman, LLP, Brooklyn, N.Y. (Jeremy B. Honig and Joseph Miller of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated October 6, 2004, which granted the defendants' 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 entitlement to judgment as a matter of law dismissing the complaint on the ground 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;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmed medical reports of the defendants' examining physicians specified the degrees of range of motion in the plaintiff's cervical and lumbar spine without comparing these findings to the normal range of motion (see Baudillo v. Pam Car & Truck Rental, Inc., 23 A.D.3d 420, 803 N.Y.S.2d 922;  Meiheng Qu v. Doshna, 12 A.D.3d 578, 785 N.Y.S.2d 112;  Aronov v. Leybovich, 3 A.D.3d 511, 770 N.Y.S.2d 741).   Since the defendants failed to meet their initial burden of establishing a prima facie case, the sufficiency of the plaintiff's opposition papers need not be considered (see Walker v. Village of Ossining, 18 A.D.3d 867, 796 N.Y.S.2d 658;  Junco v. Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

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