Finally, since plaintiff did not sustain a serious injury, there can be no recovery against the remaining defendant Derrick Lewis. Upon searching the record, summary judgment is granted dismissing the complaint as to defendant Lewis as well (see CPLR 3212[b]; Grell v. MABSTOA, 288 A.D.2d 259). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
In the context of the serious injury threshold, the question of whether to search the record to award summary judgment occurs most frequently when a court is faced with a motion or appeal by one or more defendants but not by all of them, seeking an order dismissing the plaintiff's complaint. Case law is replete with instances where the relief was accorded to the non-moving or non-appealing defendants (e.g. Pom Chun Kim v Franco, 137 A.D.3d 991 [2d Dept 2016]; Mohamed v Blackowl, 116 A.D.3d 678 [2d Dept 2014]; Lewars v Transit Facility Management Corp., 84 A.D.3d 1176 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034 [2d Dept 2011]; Jason v Danar, 1 A.D.3d 398 [2d Dept 2003]; Nelson v Distant, 308 A.D.2d 338 [1st Dept 2003]; Grell v MABSTOA, 288 A.D.2d 259 [2d Dept 2001]; Reif v Calderaro, 2015 WL 3915904 [Sup Ct, Suffolk County, June 12, 2015, No. 12-36405]; Peralta v The New York City Tr. Auth., 2016 WL 7329757 [Sup Ct, Bronx County, Nov. 1, 2016, No. 350073/2011]).
Dismissing a serious injury claim against all defendants when one moving defendant has shown the plaintiff lacks a serious injury, for example, fits within this scheme, because that issue is identical for all defendants and applies with equal force to each. ( Nelson v Distant, 308 AD2d at 340; Jason v Danar, 1 AD3d 398, 399 [2d Dept 2003]; Grell v MABSTOA, 288 AD2d 259, 260 [2d Dept 2001]; Dinkle v Lagala, 246 AD2d 624, 625 [2d Dept 1998].) Here, since no party addressed the issue of a gap in plaintiff's treatment, even were defendant a non-moving party, the court could not grant summary judgment to him.
Moreover, Dr. Neuman has failed to set forth any objective tests that he performed. See Grell v. Mabstoa, 288 A.D.2d 259, 260 (2nd Dept. 2001) (affirmed reports of plaintiffs' expert insufficient to create triable issue of fact where reports failed to specify nature of objective tests on which conclusions as to restriction of motion were based). Nor do the limited ranges of motion allegedly found, set forth any objective standards used to render those determinations.