Lamb v. Rajinder

51 A.D.3d 430, 859 N.Y.S.2d 4

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered November 29, 2007, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to meet their initial burden of establishing, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affirmed report of defendants’ examining neurologist failed to set forth the objective tests performed supporting his claims that there was no limitation of range of motion, and their otologist’s affirmed report, finding, inter alia, that plaintiffs external auditory canals and tympanic membranes were within normal limits, suffered from the same infirmity (see Nix v Yang Gao Xiang, 19 AD3d 227 [2005]). Defendants’ failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiffs opposition to the motion (see Offman v Singh, 27 AD3d 284 [2006]). Concur—Mazzarelli, J.P., Friedman, Sweeny and Moskowitz, JJ.