Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered January 13, 2005. The order granted defendant's motion for summary judgment.

Order reversed without costs and motion by defendant for summary judgment denied.

Defendant moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendant's doctor failed to set forth any objective tests with regard to the range of motion of plaintiff's cervical and lumbar spine (Barrett v Jeannot, 18 AD3d 679 [2005]; Black v Robinson, 305 AD2d 438 [2003]). Since defendant failed to shift the burden on his motion for summary judgment, we need not consider the sufficiency of plaintiff's opposition papers (Torres v Safety Cab Corp., 25 AD3d 548 [2006]).

Rios and Belen, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to affirm the order in the following memorandum.

Contrary to the finding by the majority, I find that Dr. Singh's examination and report sets forth numerous objective tests that were performed on Ms. Mendoza which included direct observation of her ability to walk, get on and off the examining table, absence of any atrophy, full power in limbs, sensation tests, etc.

The burden then shifted to plaintiff who submitted a report from the chiropractor who treated Ms. Mendoza from October 13, 2001 until February 28, 2002 for an April 3, 2001 accident.

It remains unexplained why Ms. Mendoza apparently went untreated by anyone from [*2]February 28, 2002 through the date of the motion for summary judgment in September 2004, including the submission of a "stale" report of plaintiff's chiropractor who apparently has not conducted a current examination.

Accordingly, I find that the plaintiff failed to overcome her burden of establishing that she suffered a serious injury as defined by § 5102 of the Insurance Law.
Decision Date: May 17, 2006