Opinion
2003-02367.
Decided March 8, 2004.
In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Milano, J.), dated February 10, 2003, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Levine Gilbert, New York, N.Y. (Harvey A. Levine of counsel), for appellant.
Agen Stenz, Westbury, N.Y. (Stuart M. Kurland of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Both of the defendant's examining physicians failed to demonstrate that the disc bulges and herniations were not causally related to the accident, or that the injuries were not serious within the meaning of Insurance Law § 5102(d) ( see Gray v. Lasurdo, 302 A.D.2d 560; Woods-Smith v. Tighe, 291 A.D.2d 399; Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470). Further, both examining physicians failed to set forth the objective tests they performed to support their findings that the plaintiff had no limitation of range of motion ( see Black v. Robinson, 305 A.D.2d 438; Junco v. Ranzi, 288 A.D.2d 440).
Therefore, since the defendant failed to establish his entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiff's opposition papers ( see Black v. Robinson, supra; Junco v. Ranzi, supra).
FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.