Opinion
2006-1374 Q C.
Decided on February 7, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered September 30, 2005, deemed from so much of a judgment of the same court, entered July 26, 2006 (see CPLR 5501 [c]), as dismissed the complaint against defendants Chase Manhattan Bank, NA and Chase Manhattan Auto Finance. The judgment, insofar as appealed from, entered pursuant to the September 30, 2005 order granting the motion by defendants Chase Manhattan Bank, NA and Chase Manhattan Auto Finance for summary judgment, dismissed the complaint insofar as asserted against them.
Judgment, insofar as appealed from, reversed without costs, order entered September 30, 2005 granting the motion by defendants Chase Manhattan Bank, NA and Chase Manhattan Auto Finance for summary judgment vacated, and said defendants' motion for summary judgment dismissing the complaint insofar as asserted against them denied.
PRESENT: WESTON PATTERSON, J.P. and RIOS, J.
Although plaintiff's original bill of particulars did not allege the specific categories under which she was claiming "serious injury" ( cf. CPLR 3043 [b]), a review of the injuries alleged in the bill of particulars suggests that plaintiff initially intended to proceed under the categories of "significant limitation of use of a body function or system" and "permanent consequential limitation of use of a body organ or member" of Insurance Law § 5102 (d).
On a motion for summary judgment, where the issue is whether the plaintiff sustained a
serious injury, the defendant bears the initial burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting competent proof which objectively demonstrates that the plaintiff did not suffer a serious injury as a result of the accident ( see e.g. Browdame v Candura, 25 AD3d 747). Contrary to the determination of the court below, defendants Chase Manhattan Bank, NA and Chase Manhattan Auto Finance ("defendants") failed to establish their prima facie entitlement to judgment as a matter of law. Although the affirmed report of defendants' examining neurologist noted that plaintiff's examination was "normal" and that testing results were "normal" or "within normal limits," the report failed to set forth the objective tests performed to support this conclusion ( see Faun Thai v Butt, 34 AD3d 447; Ilardo v New York City Tr. Auth., 28 AD3d 610). Furthermore, although the affirmed report of defendants' examining orthopedist specified the degrees of range of motion he found with respect to plaintiff's cervical and lumbar spine, he failed to compare those findings to the normal range of motion, leaving the court to speculate as to the meaning of those figures ( Aronov v Leybovich, 3 AD3d 511). The failure to make such a comparison "requires denial of defendant[s'] motion" ( Spektor v Dichy, 34 AD3d 557, 558; see also Powell v Alade, 31 AD3d 523; Abraham v Bello, 29 AD3d 497; Sullivan v Dawes, 28 AD3d 472; Baudillo v Pam Car Truck Rental, Inc., 23 AD3d 420; Manceri v Bowe, 19 AD3d 462).
Since defendants failed to satisfy their burden on this motion, it is unnecessary to consider whether plaintiff's submissions in opposition raised a triable issue of fact ( see Spektor v Dichy, 34 AD3d 557, supra).
Weston Patterson, J.P. and Rios, J., concur.