| Webb v Keyspan Corp. |
| 2008 NY Slip Op 08479 [56 AD3d 464] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Aaron J. Webb, Appellant, v Keyspan Corporation et al.,Respondents. |
—[*1] Cullen and Dykman, LLP, Brooklyn, N.Y. (Joseph Miller and Joseph Delfino of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated January 18, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain 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 forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to meet their primafacie burden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Insupport of their motion, the defendants relied upon the affirmed medical report of theirorthopedic surgeon, Dr. Philip G. Taylor. During range of motion testing, Dr. Taylor noted thatwhen the plaintiff was performing straight leg testing in the supine position, he was only able tolift his left leg to 70 degrees, but had no problems on the right side. Dr. Taylor failed to comparethis finding to what is normal. Absent such comparative quantification, the court cannot concludethat the decreased [*2]lumbar range of motion noted was mild,minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Yashayev v Rodriguez, 28 AD3d651 [2006]; see also Gaccione vKrebs, 53 AD3d 524 [2008]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiff were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d524 [2008]; Yashayev vRodriguez, 28 AD3d 651 [2006]; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.