Sullivan v. Dawes

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated April 15, 2005, which denied their 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 affirmed, with costs. The orthopedist’s affirmation upon which the defendants’ motion for summary judgment was predicated assigned a numerical value to the range of motion of the plaintiffs lumbar spine, but failed to compare his findings against the normal range of motion. Accordingly, the defendants failed to make a prima facie showing of entitlement to judgment on the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Browdame v Candura, 25 AD3d 747 [2006]; Paulino v Dedios, 24 AD3d 741 [2005]; Kennedy v Brown, 23 AD3d 625, 626 [2005]), and the Supreme Court properly denied the defendants’ motion (see Boone v New York City Tr. Auth., 263 AD2d 463 [1999]; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; cf. Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]; Meely v 4 G’s Truck Renting Co., Inc., 16 AD3d 26, 29-30 [2005]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.