Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered February 16, 2005. The order granted the motion by defendant Cora W. Smith and the cross motions by defendants Elizabeth King, Wainwright N. King and Marcel Laurol for summary judgment.

Order reversed without costs and motion by defendant Cora W. Smith and cross motions by defendants Elizabeth King, Wainwright N. King and Marcel Laurol for summary judgment denied.

The defendants moved and cross moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). A
review of the moving papers reveals that defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. The affirmed medical report of one of defendants' examining physicians specified the degrees of motion in the plaintiff's cervical and lumbar spines without comparing those findings to the normal range of motion (see Welch v Penske Truck Leasing Corp., 29 AD3d 783 [2006]). The other two doctors who examined plaintiff on defendants' behalf did not state that they performed any range of motion tests. Since defendants failed to meet their initial burden, the sufficiency of the plaintiff's opposition papers need not be considered (see Tolstocheev v Bajrovic, 28 AD3d 473 [2006]).

Pesce, P.J., and Rios, J., concur. [*2]

Golia, J., concurs in a separate memorandum.

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

I disagree with the majority that two doctors who examined plaintiff on defendants' behalf "did not state that they performed any range of motion tests" (emphasis added), but I do find that the doctors' affirmations fail to meet the initial burden of establishing that plaintiff did not suffer a "serious injury" as defined by section 5102 (d) of the Insurance Law.

Therefore, I agree with the ultimate disposition in the decision reached by the majority.
Decision Date: November 29, 2006