Appeal by plaintiff from an order of the Civil Court, Kings County

(K. Rothenberg, J.), entered November 14, 2002, which, upon granting reargument, adhered to an earlier decision denying plaintiff's motion to vacate a dismissal of the action obtained following plaintiff's default in opposing a motion by defendant for summary judgment.

Order unanimously modified by providing that, upon reargument, plaintiff's motion to vacate the dismissal of the action is granted and defendant's underlying motion for summary judgment is denied; as so modified, affirmed without costs.

The court, in granting reargument, indicated that plaintiff had presented a sufficient excuse for his default in answering defendant's summary judgment motion.
The court should then have considered whether defendant, in his original motion, established prima facie his entitlement to judgment dismissing the complaint on the
ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affirmed report of the defendant's medical expert did not set forth the objective tests he performed during his examination of the plaintiff which led him to conclude that plaintiff had no disability (Junco v Ranzi, 288 AD2d 440 [2001]). Under the circumstances, plaintiff's motion to vacate the dismissal of the action should have been granted and defendant's underlying motion for summary judgment should have been denied. [*2]
Decision Date: May 04, 2004