Junco v. Ranzi

Full title: LOUIS A. JUNCO, respondent, v. ALPHONSE RANZI, ET AL., appellants

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 26, 2001

288 A.D.2d 440 (N.Y. App. Div. 2001)

733 N.Y.S.2d 897

Opinion

2001-02005

Submitted May 9, 2001.

November 26, 2001.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated February 7, 2001, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Hobbes Tonetti (Sweetbaum Sweetbaum, Lake Success, N Y [Marshall D. Sweetbaum] of counsel), for appellants.

Steven D. Dollinger, Melville, N.Y. (Susan R. Nudelman of counsel), for respondent.

Before: DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, LEO F. McGINITY, NANCY E. SMITH, BARRY A. COZIER, JJ.

ORDERED that the order is affirmed, with costs.

In support of their motion for summary judgment dismissing the complaint, the defendants failed to establish prima facie their entitlement to judgment as a matter of law dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955). The affirmed report of the defendants' medical expert did not set forth the objective tests he performed during his examination of the plaintiff which led him to conclude that the plaintiff suffered no limitation to the range of motion in his neck or back (see, Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470; Villalta v. Schechter, 273 A.D.2d 299). Thus, we need not consider whether the plaintiff's opposition to the motion was sufficient to raise a triable issue of fact (see, Papadonikolakis v. First Fid. Leasing Group, supra; Chaplin v. Taylor, 273 A.D.2d 188).

RITTER, J.P., ALTMAN, McGINITY, SMITH and COZIER, JJ., concur.