Opinion
2004-691 K C.
Decided February 17, 2005.
Appeal by defendant from an order of the Civil Court, Kings County (J. Battaglia, J.), entered April 5, 2004, which denied his motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Defendant moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d).
Defendant's doctors failed to set forth the objective tests supporting the claim that there was no limitation of motion of plaintiff's lumbar spine ( Taylor v. Ellis, 5 AD3d 471; Black v. Robinson, 305 AD2d 438; Roca v. Delgado, 4 Misc 3d 126[A], 2004 NY Slip Op 50609[U] [App Term, 2d 11th Jud Dists]). Inasmuch as defendant's motion failed to shift the burden to plaintiff, the sufficiency of plaintiff's opposition papers need not be considered ( Aronov v. Leybovich, 3 AD3d 511).