Opinion
2008-923 K C.
Decided February 10, 2009.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 11, 2005. The order denied defendant's motion for summary judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and STEINHARDT, JJ.
Plaintiffs commenced this action to recover for, respectively, serious injuries allegedly sustained by plaintiff Allan C. Coerbell in a motor vehicle accident and plaintiff Elsa Coerbell's loss of consortium. Defendant moved for summary judgment dismissing the complaint on the ground that Mr. Coerbell did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The court denied the motion, and the instant appeal by defendant ensued.
Defendant's motion for summary judgment was properly denied inasmuch as defendant failed to meet his prima facie burden of showing that Mr. Coerbell 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955). Defendant failed to submit admissible medical evidence demonstrating, inter alia, that Mr. Coerbell had a full range of motion, by comparing his range of motion, following range of motion testing, to the normal range of motion ( see Powell v Alade, 31 AD3d 523). Absent such comparisons, it cannot be concluded that the ranges of motion in the tested areas were normal ( see McKenzie v Redl, 47 AD3d 775; Spektor v Dichy, 34 AD3d 557). In addition, the record demonstrates that defendant's doctors' affirmed reports failed to adequately address the assertion in plaintiffs' verified bill of particulars and Mr. Coerbell's deposition testimony that Mr. Coerbell sustained a medically determined injury of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for a period of not less than 90 days during the 180 days immediately following the accident ( see Breland v Karnak Corp., 50 AD3d 613).
Since defendant failed to satisfy his initial burden, we do not reach the sufficiency of plaintiffs' papers to raise a triable issue of fact in opposition to defendant's
motion for summary judgment ( see Ruffino v Green, 54 AD3d 745; Coscia v 938 Trading Corp., 283 AD2d 538), nor do we reach the parties' remaining contentions.
Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.