Daley v. Shahzad

13 A.D.3d 475, 786 N.Y.S.2d 308, 2004 N.Y. App. Div. LEXIS 15847

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated February 5, 2004, which denied their 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 defendants 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., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmations of the defendants’ examining physicians were conclusory in nature and failed to “set forth the objective test or tests performed supporting their claims that there was no limitation of range of motion” (Black v Robinson, 305 AD2d 438 [2003]; see Zavala v DeSantis, 1 AD3d 354 [2003]; Gamberg v Romeo, 289 AD2d 525 [2001]; Junco v Ranzi, 288 AD2d 440 [2001]). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment. Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur.