NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 25, 2010
REGINA D. BEAZER, PLAINTIFF-RESPONDENT,
FRASER M. WEBSTER, ET AL., DEFENDANTS-APPELLANTS.
Order, Supreme Court, New York County (Paul Wooten, J.), entered December 3, 2008, which denied defendants' motion for summary judgment dismissing the complaint, 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.
Gonzalez, P.J., Mazzarelli, Nardelli, Acosta, Abdus-Salaam, JJ.
Defendants failed to meet their prima facie burden of establishing that plaintiff did not suffer a serious injury under Insurance Law § 5102(d). Defendants' experts did not address or attempt to distinguish the objective findings of plaintiff's MRI, the EMG/NCV scan, and the other evidence of serious injury (see Patterson v Rivera, 49 AD3d 337 ). Defendants' failure to indicate the objective tests used to determine the range of motion in plaintiff's cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal (Offman v Singh, 27 AD3d 284 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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