Opinion
2006-1938 Q C.
Decided April 8, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 1, 2006, deemed from a judgment of said court, entered November 3, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 1, 2006 order denying plaintiff's motion for summary judgment on the issue of liability and granting defendant's cross motion for summary judgment, dismissed the complaint.
Judgment reversed without costs, order entered June 1, 2006, insofar as it granted defendant's cross motion for summary judgment vacated, and defendant's cross motion for summary judgment denied.
PRESENT: GOLIA, J.P., PESCE and RIOS, JJ.
Plaintiff was crossing the street when struck by a vehicle driven by defendant. In this personal injury action, plaintiff moved for summary judgment on the issue of liability. Defendant opposed plaintiff's motion and cross-moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The court granted defendant's cross motion, and noted that had plaintiff's motion not thereby been rendered moot, an issue of fact would have required denial of her motion. The instant appeal by plaintiff ensued. Defendant failed to meet his prima facie burden of showing that plaintiff 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). To establish his entitlement to summary judgment on the issue of serious injury, defendant was required to submit admissible medical evidence demonstrating that plaintiff had a full range of motion by comparing plaintiff's range of motion, following range of motion testing, to normal range of motion. In support of his cross motion for summary judgment, defendant's examining physicians submitted affirmed reports in which they discussed their respective examinations and range of motion testing of plaintiff for certain observed movements. The orthopedist reported that the testing revealed that the range of motion for each of plaintiff's knees was "from 0 to 90 degrees," and the ranges of motion for the cervical and lumbosacral spine were "full and pain free." The neurologist merely stated, without quantification, that plaintiff had a full range of motion of the neck, both shoulders and lower torso. Thus, the reports which were submitted by defendant failed to compare the doctors' findings against what is normal range of motion ( see McKenzie v Redl, 47 AD3d 775; Page v Belmonte, 45 AD3d 825; Spektor v Dichy, 34 AD3d 557; Hernandez v Stanley, 34 AD3d 428; Powell v Alade, 31 AD3d 523). The failure by the physicians to make such a comparison requires denial of defendant's cross motion for summary judgment ( see Spektor, 34 AD3d at 558; Sullivan v Dawes, 28 AD3d 472, 472; Browdame v Candura, 25 AD3d 747, 748). Since defendant failed to establish a prima facie case regarding serious injury, it is unnecessary to consider whether plaintiff's papers in opposition were sufficient to raise a triable issue of fact ( see Spektor, 34 AD3d at 558; Coscia v 938 Trading Corp., 283 AD2d 538).
We further find that plaintiff's motion for summary judgment on the issue of liability was properly denied, as plaintiff's own affidavit in support of her motion raises a question of fact as to her comparative negligence ( see Thoma v Ronai, 82 NY2d 736, 737; Cator v Filipe, 47 AD3d 664).
Golia, J.P., Pesce and Rios, JJ., concur.