D'Angelo v. Guerra

307 A.D.2d 306, 762 N.Y.S.2d 508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Betsy Guerra appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Hall, J.), entered November 26, 2002, as denied her motion for summary judgment dismissing the complaint insofar as asserted against her 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 insofar as appealed from, with costs.

On her motion for summary judgment, the appellant failed to make a prima facie showing that the plaintiff did not sustain a serious injury as a result of the subject motor vehicle accident. While the defendants’ examining orthopedist found no objective orthopedic evidence of any causally related residual injuries to the cervical or lumbar spine, he specified certain degrees of limitation of range of motion in the plaintiff’s cervical spine. In any event, he failed to make any findings regarding the alleged limitations of range of motion in the plaintiffs lumbar spine and left leg. The appellant’s proof failed to objectively establish that the plaintiff suffered no limitation to the range of motion in his spine and leg (see Black v Robinson, 305 AD2d 438 [ 2003]; Gamberg v Romeo, 289 AD2d 525 [2001]; Junco v Ranzi, 288 AD2d 440 [2001]). Since the appellant failed to establish her entitlement to judgment as a matter of law, the sufficiency of the plaintiff’s opposition papers need not be considered (see Chaplin v Taylor, 273 AD2d 188 [2000]). Altman, J.P., Krausman, Goldstein, H. Miller and Crane, JJ., concur.