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Pennino v Excellence Transp., Inc.
2005 NY Slip Op 52089(U) [10 Misc 3d 134(A)]
Decided on December 12, 2005
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 12, 2005
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: GOLIA, J.P., RIOS and BELEN, JJ.
2005-271 K C

Doreen Pennino, Respondent,

against

Excellence Transportation, Inc., AHMED M. FAHMY, Appellants, -and- CROSSLANDS TRANSPORTATION, INC., Defendant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 3, 2004. The order denied the motion


by defendants Excellence Transportation, Inc. and Ahmed M. Fahmy for summary judgment.

Order unanimously affirmed without costs.

Defendants Excellence Transportation, Inc. and Ahmed M. Fahmy moved for summary judgment on the ground that plaintiff did not satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). The moving defendants' doctor failed to set forth the objective tests supporting the claim that there was no limitation of motion of plaintiff's lumbar and cervical spines (see Facci v Kaminsky, 18 AD3d 806 [2005]). Furthermore, said doctor did not review an MRI of plaintiff's lumbar spine taken two years before the date of his affirmation. Since defendants failed
to meet their initial burden of establishing a prima facie case that plaintiff did not sustain a serious injury, the sufficiency of plaintiff's opposition papers need not be considered (id.).
Decision Date: December 12, 2005