One of defendant's experts examined plaintiff and acknowledged that he exhibited radiculopathy (seeCrewe, 124 A.D.3d at 1265, 3 N.Y.S.3d 798 ), and defendant's other expert measured limitations in the range of motion in plaintiff's cervical spine (seeMonterro, 160 A.D.3d at 1460, 72 N.Y.S.3d 880 ). Although the latter expert opined that plaintiff was feigning those limitations, the expert provided no factual basis for that opinion (seeThomas v. Huh, 115 A.D.3d 1225, 1226, 982 N.Y.S.2d 634 [4th Dept. 2014] ; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 469, 870 N.Y.S.2d 366 [2d Dept. 2008] ).Finally, even assuming, arguendo, that defendant met its initial burden with respect to the permanent consequential limitation of use category, we conclude that plaintiff raised an issue of fact through the affidavit of his expert, who opined that plaintiff had not responded to treatment, that he would require surgery, and that his injuries are permanent (seeEdwards v. Devine, 111 A.D.3d 1370, 1372, 975 N.Y.S.2d 277 [4th Dept. 2013] ; Garza v. Taravella, 74 A.D.3d 1802, 1803, 905 N.Y.S.2d 392 [4th Dept. 2010] ).
The opinion of that physician, i.e., that plaintiff's condition was the result of degenerative changes predating the accident, fails to account for evidence that plaintiff had no complaints of pain prior to the accident ( see Endres v. Shelba D. Johnson Trucking, Inc., 60 A.D.3d 1481, 1482–1483, 876 N.Y.S.2d 593;Ashquabe v. McConnell, 46 A.D.3d 1419, 1419, 848 N.Y.S.2d 794). In any event, his opinion is contrary to that of several other medical professionals who concluded that plaintiff's condition was causally related to the accident ( see Limardi v. McLeod, 100 A.D.3d 1375, 1377, 953 N.Y.S.2d 762). That same physician, moreover, was alone in his opinion that plaintiff's limitations in his ranges of motion were magnified or self-imposed, and he provided no factual basis for that opinion ( see Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 469, 870 N.Y.S.2d 366). In light of defendants' failure to meet their initial burden on the motion, there is no need to consider the sufficiency of plaintiffs' opposition thereto ( see Summers, 109 A.D.3d at 1193, 971 N.Y.S.2d 773).
omparing those findings to what was normal, we cannot conclude, as a matter of law, that this decreased range of motion “is minor, mild or slight” so as to be considered insignificant within the meaning of the no-fault statute ( Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088; see Sainnoval v. Sallick, 78 A.D.3d 922, 911 N.Y.S.2d 429). Moreover, while Dr. Montalbano opined that the range-of-motion limitations noted in the plaintiff's shoulders were “subjective” in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence ( see Artis v. Lucas, 84 A.D.3d 845, 921 N.Y.S.2d 910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; cf. Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45; Torres v. Garcia, 59 A.D.3d 705, 706, 874 N.Y.S.2d 527; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366). The Supreme Court properly concluded that in support of their respective motion and cross motion, the defendants Fava Cab Corp. and Nadeem A. Awan (hereinafter together the Fava Cab defendants), and the defendants Staff Cab Corp. and Balandea N. Tripathi (hereinafter together the Staff Cab defendants), made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d at 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). With respect to the issue of serious injury, those defendants did not rely on the same evidence relied upon by the Farook defendants in support of their cross motion.
tion in the lumbar region of the plaintiff's spine ( see Artis v. Lucas, 84 A.D.3d 845, 921 N.Y.S.2d 910; Ortiz v. Orlov, 76 A.D.3d 1000, 1001, 907 N.Y.S.2d 688; Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517; Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Leopold v. New York City Tr. Auth., 72 A.D.3d 906, 899 N.Y.S.2d 626). While this neurologist suggested that the limitations noted were subjective in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence ( see Artis v. Lucas, 84 A.D.3d at 845, 921 N.Y.S.2d 910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632; Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45; Torres v. Garcia, 59 A.D.3d 705, 706, 874 N.Y.S.2d 527; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366).
f motion of the thoracolumbar region of the plaintiff's spine ( see Artis v. Lucas, 84 A.D.3d 845, 921 N.Y.S.2d 910; Ortiz v. Orlov, 76 A.D.3d 1000, 1001, 907 N.Y.S.2d 688; Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517; Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Leopold v. New York City Tr. Auth., 72 A.D.3d 906, 899 N.Y.S.2d 626). While Dr. DeJesus opined that those limitations were “subjective” in nature, she failed to explain or substantiate, with any objective medical evidence, the basis for her conclusion that the noted limitations were self-imposed ( see Artis v. Lucas, 84 A.D.3d at 845, 921 N.Y.S.2d 910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632; Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45; Torres v. Garcia, 59 A.D.3d 705, 706, 874 N.Y.S.2d 527; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366). In this case, the plaintiff alleged in her bill of particulars that the subject accident caused an exacerbation of her prior hemilaminectomy at L5, and an aggravation, exacerbation, and/or precipitation of prior dormant lower back pain.
Lucas, 84 A.D.3d 845, 921 N.Y.S.2d 910; Ortiz v. Orlov, 76 A.D.3d 1000, 1001, 907 N.Y.S.2d 688; Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517; Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Leopold v. New York City Tr. Auth., 72 A.D.3d 906, 899 N.Y.S.2d 626). Although Dr. Purcell indicated that the “[d]iminished range of motion” noted was “subjective” in nature, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the noted limitations in the plaintiffs' respective ranges of motion were self-imposed ( see Artis v. Lucas, 84 A.D.3d at 845, 921 N.Y.S.2d 910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632; Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45; Torres v. Garcia, 59 A.D.3d 705, 706, 874 N.Y.S.2d 527; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366). Since Vilsaint failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue of fact ( see Artis v. Lucas, 84 A.D.3d at 846, 921 N.Y.S.2d 910; Iannello v. Vazquez, 78 A.D.3d at 1121, 911 N.Y.S.2d 654; Ortiz v. Orlov, 76 A.D.3d at 1001, 907 N.Y.S.2d 688; Bengaly v. Singh, 68 A.D.3d at 1031, 890 N.Y.S.2d 352; Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).
ations in the range of motion in the cervical and thoracolumbar regions of the plaintiff Edison Charles' spine, and significant limitations in the range of motion in the cervicothoracic region of the plaintiff Edouard Roc's spine (seeArtis v Lucas , 84 AD3d 845; Ortiz v Orlov , 76 AD3d 1000, 1001; Cheour v Pete Sals Harborview Transp.,Inc. , 76 AD3d 989; Smith v Hartman , 73 AD3d 736; Leopold v New York City Tr. Auth. , 72 AD3d 906). Although Dr. Purcell indicated that the "[d]iminished range of motion" noted was "subjective" in nature, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the noted limitations in the plaintiffs' respective ranges of motion were self-imposed ( see Artis v Lucas, 84 AD3d at 845; Iannello v Vazquez , 78 AD3d 1121; Granovskiy v Zarbaliyev , 78 AD3d 656; cf. Perl v Meher , 74 AD3d 930; Bengaly v Singh , 68 AD3d 1030, 1031;Moriera v Durango , 65 AD3d 1024, 1024 — 1025; Torres vGarcia , 59 AD3d 705, 706; Busljeta v Plandome Leasing,Inc. , 57 AD3d 469). Since Vilsaint failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue of fact ( see Artis v Lucas, 84 AD3d at 846; Iannello v Vazquez, 78 AD3d at 1121; Ortiz v Orlov, 76 AD3d at 1001; Bengaly v Singh, 68 AD3d at 1031; Coscia v 938 Trading Corp., 283 AD2d 538).
In support of his motion, the defendant relied upon, inter alia, the affirmed medical report of Dr. Alan M. Crystal. When this doctor examined the plaintiff in February 2010, he noted significant limitations in the range of motion of the lumbar region of the plaintiffs spine ( see Ortiz v Orlov, 76 AD3d 1000, 1001; Cheour v Pete Sals Harborview Transp., Inc., 76 AD3d 989; Smith v Hartman, 73 AD3d 736; Leopold v New York City Tr. Auth., 72 AD3d 906). Although Dr. Crystal indicated that the limitations noted were subjective in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence ( see Iannello v Vazquez, 78 AD3d 1121; Granovskiy v Zarbaliyev, 78 AD3d 656; cf. Perl v Meher, 74 AD3d 930; Bengaly v Singh, 68 AD3d 1030, 1031; Moriera v Durango, 65 AD3d 1024, 1024-1025; Torres v Garcia, 59 AD3d 705, 706; Busljeta v Plandome Leasing, Inc., 57 AD3d 469). Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiffs papers submitted in opposition were sufficient to raise a triable issue of fact ( see Iannello v Vazquez, 78 AD3d at 1121; Ortiz v Orlov, 76 AD3d at 1001; Bengaly v Singh, 68 AD3d at 1031; Coscia v 938 Trading Corp., 283 AD2d 538).
ed on, inter alia, the affirmed medical report of Dr. Michael P. Rafiy, their examining orthopedic surgeon. In his report, Dr. Rafiy noted significant limitations in the range of motion of the plaintiffs right shoulder ( see Giacomaro v Wilson, 58 AD3d 802, 803; McGregor v Avellaneda, 50 AD3d 749, 749-750; Wright v AAA Constr. Servs., Inc., 49 AD3d 531). While he concluded that the range of motion was "self-limited," he failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the limitations that were noted were self-limited ( see Chun Ok Kim v Orourke, 70 AD3d 995; Mondert v Iglesia De Dios Pentecostal Cristo Viene, Inc., 69 AD3d 590, 590-591; Bengaly v Singh, 68 AD3d 1030, 1031; Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734, 734-735; Chang Ai Chung v Levy, 66 AD3d 946, 947; Delacruz v Ostrich Cab Corp., 66 AD3d 818, 819; Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805, 806; Torres v Garcia, 59 AD3d 705, 706; Busljeta v Plandome Leasing, Inc., 57 AD3d 469). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendants' motion were sufficient to raise a triable issue of fact ( see Chang Ai Chung v Levy, 66 AD3d at 947; Cuevas v Compote Cab Corp., 61 AD3d at 812-813).
Similarly, the affirmed medical report of Dr. Mark J. Zuckerman, the defendants' neurologist, found a restriction in Lois Reitz's lumbar spine and stated that she suffers from myofascial pain syndrome as a result of the subject accident. Although both physicians opined that any restrictions were subjective and resulted from preexisting degenerative changes noted in a December 2006 magnetic resonance imaging scan and not the subject accident, they failed to explain or substantiate, with objective medical evidence, the basis for their conclusions ( see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734; Moriera v Durango, 65 AD3d 1024; Busljeta v Plandome Leasing, Inc., 57 AD3d 469). Accordingly, we need not consider the sufficiency of the papers submitted by the plaintiffs in opposition to the cross motion ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).