NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 29, 2009
EIRIT SIMANTOV, PLAINTIFF-RESPONDENT,
KIPPS TAXI, INC., ET AL., DEFENDANTS-APPELLANTS.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered July 14, 2009, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Catterson, Moskowitz, Richter, Manzanet-Daniels, JJ.
Defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. The range of motion findings of defendants' neurologist, who had not reviewed any of plaintiff's medical records, were not probative since they were not stated to be based on objective tests (see Linton v Nawaz, 62 AD3d 434, 438-439 ; Glynn v Hopkins, 55 AD3d 498 ), and their radiologist failed to address a number of the injuries claimed in the bill of particulars (see Menezes v Khan, __ AD3d __, 2009 NY Slip Op 7991 [2d Dept 2009]; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815 ). Furthermore, defendants only addressed plaintiff's claimed 90/180 day disability in reply (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 ).
Defendants' failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiff's opposition to the motion (see Offman v Singh, 27 AD3d 284 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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