Opinion
2007-972 RI C.
Decided July 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered April 10, 2007. The order granted the motion by defendants Atrium Bus Co., Inc., a/k/a Pioneer Transportation Corp. and Daniel S. Yaccarino, and the cross motion by defendants Edward Rovi and Leigh R. Rovi for summary judgment dismissing the complaint on the ground that plaintiff Alexandra Torres did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Order reversed without costs and motion by defendants Atrium Bus Co., Inc., a/k/a Pioneer Transportation Corp. and Daniel S. Yaccarino, and cross motion by defendants Edward Rovi and Leigh R. Rovi for summary judgment denied.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
Defendants Atrium Bus Co., Inc., a/k/a Pioneer Transportation Corp. and Daniel S. Yaccarino (Atrium and Yaccarino) moved for summary judgment on the ground that the infant plaintiff, Alexandra Torres, did not sustain a serious injury pursuant to 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). Defendants Edward Rovi and Leigh R. Rovi cross-moved for summary judgment, adopting the arguments and proof submitted by defendants Atrium and Yaccarino.
To establish their entitlement to summary judgment on the issue of serious injury, defendants were required to submit admissible medical evidence demonstrating that the ranges of motion in Alexandra Torres' cervical and lumbar spine were "not significantly limited in comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height" ( Frey v Fedorciuc, 36 AD3d 587, 588; see Powell v Alade, 31 AD3d 523).
Defendants based their respective motions for summary judgment upon, inter alia, the affirmed medical report of the examining orthopedist, who, following range of motion testing, assigned numerical values to the ranges of motion for Alexandra Torres' cervical and lumbar spine. Nowhere were these findings compared against what is deemed to be a normal range of motion ( see Spektor v Dichy, 34 AD3d 557). The physician's failure to set forth such a comparison requires denial of the motion and cross motion for summary judgment ( id.; see also Page v Belmonte, 45 AD3d 825, 826). Since defendants failed to satisfy their initial burden on their motion and cross motion, it is not necessary to consider whether plaintiff's papers in opposition were sufficient to raise a triable issue of fact ( see Joseph v Hampton, 48 AD3d 638; Coscia v 938 Trading Corp., 283 AD2d 538).
Golia, J.P., Rios and Steinhardt, JJ., concur.