Opinion
2002-06024
Submitted April 2, 2003.
April 28, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Jones, J.), dated May 7, 2002, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Stacey Manzi did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Reilly Reilly, LLP, Mineola, N.Y. (David T. Reilly of counsel), for appellants.
Russo, Apoznanski Hellreich, Westbury, N.Y. (Amy J. Koreen of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
Contrary to the plaintiffs' contention, the defendants did not waive the defense that the plaintiff Stacey Manzi did not sustain a serious injury within the meaning of Insurance Law § 5102(d), by conceding liability (see Zecca v. Riccardelli, 293 A.D.2d 31).
Nevertheless, we conclude that the Supreme Court should have denied the defendants' motion. The affirmed report of the defendants' medical expert failed to set forth the objective tests he performed during his examination of the injured plaintiff, which led him to conclude that she suffered no restriction of motion in the cervical spine (see Alexander v. Felago, 297 A.D.2d 762; Minlionica v. Shahabi, 296 A.D.2d 569). Thus, we need not consider whether the plaintiffs' opposition to the motion was sufficient to raise a triable issue of fact (see Chaplin v. Taylor, 273 A.D.2d 188).
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.