| Stern v Oceanside School Dist. |
| 2008 NY Slip Op 07652 [55 AD3d 596] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Fred Stern, Plaintiff, and Lee Boodoo, Appellant, v OceansideSchool District et al., Respondents. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Reagan of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff Lee Boodoo appeals from anorder of the Supreme Court, Nassau County (Adams, J.), entered July 26, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint insofar as asserted by him on theground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion for summaryjudgment dismissing the complaint insofar as asserted by the plaintiff Lee Boodoo is denied.
Contrary to the Supreme Court's conclusion, the defendants did not establish their entitlement tojudgment as a matter of law with respect to the claims asserted by the plaintiff Lee Boodoo (hereinafterthe plaintiff) by submitting evidence that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident. In the report of the defendants'examining neurologist, that physician concluded that the plaintiff had "full" range of motion in his cervicaland lumbar spine, yet he failed to set forth the objective testing he performed in arriving at thoseconclusions (see Cedillo v Rivera, 39AD3d 453 [2007]; McLaughlin vRizzo, 38 AD3d 856 [2007]; Gebav Obermeyer, 38 AD3d 597 [2007]; Larrieut v Gutterman, 37 AD3d 424 [2007]; Schacker v County of Orange, 33 AD3d903 [2006]; Ilardo v [*2]New York City Tr. Auth., 28 AD3d 610 [2006]; Kelly v Rehfeld, 26 AD3d 469 [2006];Nembhard v Delatorre, 16 AD3d390 [2005]; Black v Robinson, 305 AD2d 438 [2003]). Moreover, the defendantsincluded, with their submissions, various reports of the plaintiff's treating physicians, at least one ofwhich noted significant limitations of motion in the plaintiff's lumbar and cervical spine (see Colacino v Andrews, 50 AD3d615 [2008]; Jenkins v Miled HackingCorp., 43 AD3d 393 [2007]).
Since the defendants did not meet their prima facie burden, it is unnecessary to consider whetherthe papers submitted by the plaintiff in opposition to the motion were sufficient to raise a triable issue offact (see Colacino v Andrews, 50 AD3d615 [2008]; Cedillo v Rivera, 39AD3d 453 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Skelos, J.P.,Ritter, Dillon, Carni and Leventhal, JJ., concur.