Opinion
2006-1941 Q C.
Decided on December 28, 2007.
Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered June 23, 2006, as corrected by an order entered July 17, 2006 (see CPLR 5520 [c]), deemed an appeal from a judgment of the same court, entered November 15, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 17, 2006 order granting defendants' motion for summary judgment on the threshold category of serious injury under Insurance Law § 5102 (d), dismissed the complaint.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Judgment reversed without costs, order entered July 17, 2006 granting defendants' motion for summary judgment vacated, so much of defendants' motion as sought summary judgment on the issue of serious injury denied, and matter remanded to the court below for determination of so much of defendants' motion as sought summary judgment on the issue of liability.
The affirmed medical reports of defendants' examining physicians specified plaintiff's degrees of motion for certain observed movements; however, the reports failed to clearly establish that plaintiff did not have a limited range of motion ( see e.g. Spektor v Dichy, 34 AD3d 557; Aronov v Leybovich, 3 AD3d 511). Moreover, the testimony pointed to by defendants failed to establish that plaintiff had not suffered an injury pursuant to the 90/180 category. Since defendants failed to make a prima facie showing of entitlement to judgment as a matter of law as to serious injury, the sufficiency of the opposition papers need not be considered ( see e.g. Spektor, 34 AD3d at 558).
Accordingly, the judgment is reversed, the order granting defendants' motion is vacated, and that part of defendants' motion which sought summary judgment on the issue of serious injury is denied. As the court below did not address that part of defendants' motion which sought summary judgment on the issue of liability, the matter is remanded to the court below for determination of that issue.
Pesce, P.J., Golia and Rios, JJ., concur.