Majority
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated October 7, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 motion for summary judgment dismissing the complaint is denied.
Contrary to the finding of the Supreme Court, the defendants failed to establish their prima facie showing that the 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 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The defendants relied on the affirmed medical report of their examining orthopedic surgeon. During that expert’s examination of the plaintiff, which took place a little more than two months after the subject accident, the expert noted that the plaintiff had “full” flexion, extension and lateral flexion in his cervical spine range of motion. However, he further concluded that the plaintiff had “60 degrees of rotation bilaterally” upon examination. While the expert set forth this finding, he failed to compare that finding to what is considered the normal range of motion (see Sullivan v Dawes, 28 AD3d 472
Cases cited
- Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 p. 428
- Sullivan v. Dawes 28 AD3d 472 p. 428
- Browdame v. Candura 25 AD3d 747 p. 429
- Paulino v. Dedios 24 AD3d 741 p. 429
- Kennedy v. Brown 23 AD3d 625 p. 429
- Baudillo v. Pam Car & Truck Rental, Inc. 23 AD3d 420 p. 429
- Licari v. Elliott 57 NY2d 230 at 236 p. 429