Consolidated appeal from orders of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered on December 22, 2004 and November 1, 2005. The order entered December 22, 2004 granted defendant Rafael Montes' motion for summary judgment. The order entered November 1, 2005, insofar as appealed from, upon granting the branch of plaintiff's motion seeking reargument, adhered to the prior order entered December 22, 2004, and denied the branch of plaintiff's motion seeking renewal.

Appeal from order entered December 22, 2004 dismissed as superseded.

Order entered November 1, 2005 modified by providing that, upon reargument, defendant's motion for summary judgment is denied; as so modified, affirmed insofar as appealed from without costs.

Defendant Rafael Montes moved for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). By ordered entered [*2]December 22, 2004, the court granted defendant's motion. The plaintiff moved to renew and reargue. The court, by order entered November 1, 2005, denied renewal, granted reargument but, upon reagument, adhered to its original decision.

The defendant failed to make a prima facie showing that plaintiff did not sustain a serious injury. Defendant's examining physicians failed to set forth the objective tests used to determine that plaintiff did not have any range of motion restrictions (see Tolstocheev v Bajrovic, 28 AD3d 473 [2006]). Since defendant failed to meet his
prima facie burden, the sufficiency of plaintiff's opposition papers need not be considered (see Madatova v Madatov, 27 AD3d 531 [2006]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I disagree with the finding of the majority that the "Defendant's examining physicians failed to set forth the objective tests used to determine that plaintiff did not have any range of motion restrictions."

Defendant submitted Dr. Toriello's report which clearly enumerates a variety of objective tests that he employed in reaching his determination that the plaintiff was not "seriously" injured as a result of this accident. Those objective tests included straight
leg raising, examination of plaintiff's ambulation, observation as to the absence of muscular atrophy, etc.

Dr. Feuer also submitted a report establishing that he performed a variety of objective neurological tests in reaching his conclusion that the plaintiff did not suffer from a "serious" injury. His tests included an examination of the plaintiff's cervical spine by conducting rotation and flexion tests of the head and neck as well as noting disproportionate tenderness to light palpation with a single finger. Dr. Feuer also conducted tests of the lumbar spine by performing straight leg raising tests as to both legs. He then examined the plaintiff's ability to speak and tested both memory and concentration and found all to be normal. The doctor then objectively examined the plaintiff's visual fields as well as her pupils' reactions to light; performed a "pinprick" test; vibration tests; coordination (finger to nose) test, etc.

Contrary to my colleagues, I find that the defendant's doctors did set forth the objective tests used . To me, the majority opinion does not appear to comport with the facts of the within case (see dissent in Tariq v McLaurin, 10 Misc 3d 127[A], 2005 NY Slip Op 51894[U] [App Term, 2d & 11th Jud Dists]).

The Court of Appeals in Toure v Avis Rent A Car Sys. (98 NY2d 345, 350 [2002]) stated: "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided [*3]that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function" (emphasis in original). I conclude from a reading of Toure that the findings by the defendant's medical doctors concerning the qualitative assessment of the plaintiff's condition were sufficient to establish a prima facie showing that the plaintiff did not suffer a "serious injury" as defined by section 5102 (d) of the Insurance Law.

Notwithstanding that the trial court gave very careful and thoughtful consideration to the plaintiff's opposing papers, I disagree with that court's ultimate determination that they were insufficient. I certainly agree with the court below that the unsworn medical reports should not be considered. However, contrary to said court, I am of the view that such reports can be utilized by other physicians in reaching their medical determination. Accordingly, I find that the plaintiff's opposing papers were sufficient to warrant a denial of defendant's motion to dismiss.
Decision Date: November 27, 2006