Beazer v. Webster

70 A.D.3d 587, 895 N.Y.S.2d 755

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 2010
• Status: Published

Opinion

—Order, Supreme Court, New York County (Eaul Wooten, J.), entered December 3, 2008, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to meet their prima facie burden of establishing that plaintiff did not suffer a serious injury under Insurance Law § 5102 (d). Defendants’ experts did not address or attempt to distinguish the objective findings of plaintiff’s MRI, the EMG/NCV scan, and the other evidence of serious injury (see Patterson v Rivera, 49 AD3d 337 [2008]). Defendants’ failure to indicate the objective tests used to determine the range of motion in plaintiff’s cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal (Offman v Singh, 27 AD3d 284 [2006]). Concur— Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and Abdus-Salaam, JJ.