Opinion
2006-2147 Q C.
Decided March 5, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered May 1, 2006. The order granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a "serious injury" as defined in Insurance Law § 5102 (d).
Order reversed without costs and defendants' motion for summary judgment dismissing the complaint denied.
PRESENT: PESCE, P.J., WESTON PATTERSON AND RIOS, JJ.
In this action to recover damages for personal injuries, the Civil Court (Bernice Daun Siegal, J.), by order dated December 10, 2004, granted an unopposed motion by defendants for summary judgment dismissing the complaint on the ground that plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102 (d). Pursuant to a so-ordered stipulation dated January 24, 2006, plaintiff's default was vacated and defendants' summary judgment motion re-calendared. By order dated May 1, 2006, the Civil Court (Diccia T. Pineda-Kirwan, J.) denied the re-calendared motion, "defer[ring]" to Judge Siegal's determination that plaintiff had not suffered a serious injury.
Contrary to the Civil Court's May 1, 2006 ruling, Judge Siegal's order of December 10, 2004, granting summary judgment to defendants on default, which decision was vacated by the stipulation pursuant to the so-ordered stipulation, did not establish the law of the case. The effect of the vacatur was entirely to nullify the initial decision on the motion for summary judgment. Therefore, the initial decision and order of Judge Siegal, concluding that defendants had made a prima facie showing that plaintiff had not suffered a serious injury as a result of a motor vehicle accident and granting summary judgment to defendants, was not entitled to any deference whatsoever. The decision of the court below not to reconsider defendants' motion for summary judgment ab initio, and to defer to the determination of Judge Siegal, was erroneous.
On a motion for summary judgment, where the issue is whether the plaintiff sustained serious injury, the defendant bears the initial burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting competent proof which objectively demonstrates that the plaintiff did not suffer a serious injury as a result of the accident ( see e.g. Browdame v Candura, 25 AD3d 747). Only if the defendant meets that burden is it necessary to consider whether the plaintiff's papers are sufficient to raise a triable issue of fact ( see Spektor v Dichy, 34 AD3d 557, 558). In the instant case, defendants failed to establish their prima facie entitlement to judgment as a matter of law. Although the affirmed report of defendants' examining neurologist noted that plaintiff's examination was "normal," the report failed to set forth the objective tests performed to support this conclusion ( see Faun Thai v Butt, 34 AD3d 447; Ilardo v New York City Tr. Auth., 28 AD3d 610). Furthermore, although defendants' neurologist specified the degrees of range of motion he found with respect to plaintiff's leg raising, he failed to compare those findings to the normal range of motion, leaving the court to speculate as to the meaning of those figures ( Aranov v Leybovich, 3 AD3d 511). The failure to make such a comparison "requires denial of defendant[s'] motion" ( Spektor v Dichy, 34 AD3d at 558; see also Powell v Alade, 31 AD3d 523; Abraham v Bello, 29 AD3d 497; Sullivan v Dawes, 28 AD3d 472; Baudillo v Pam Car Truck Rental, Inc., 23 AD3d 420; Manceri v Bowe, 19 AD3d 462).
Since defendants failed to satisfy their burden on the motion, it is unnecessary to consider whether plaintiff's submissions in opposition raised a triable issue of fact ( see Spektor v Dichy, 34 AD3d 557, supra).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.