Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered August 10, 2005. The order granted defendants' motion for summary judgment.

Order reversed without costs and defendants' motion for summary judgment denied.

Defendants moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury. Despite the conclusion of one of defendants' examining physicians that plaintiff's injuries were
resolved, he recorded limitations of motion to plaintiff's lumbar spine, but did not compare such limitations to what is normal. Accordingly, defendants' moving papers were insufficient to establish prima facie entitlement to judgment as a matter of law so as to shift the burden to plaintiff (see Yashayev v Rodriguez, 28 AD3d 651 [2006]; Tchjevskaia v Chase, 15 AD3d 389 [2005]). Under the circumstances, it is unnecessary to consider the sufficiency of plaintiff's opposition papers (see Torres v Safety Cab Corp., 25 AD3d 548 [2006]; Barrett v Jeannot, 18 AD3d 679 [2005]).

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the order in the following memorandum:

In my opinion, defendants' motion for summary judgment was properly granted. Although defendants' examining physicians do not compare plaintiff's limitations to what is normal (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]), one physician attributes the cause of these limitations to a degenerative condition (see Khan v Finchler, ____ AD3d ____, 2006 NY Slip Op 07851). Defendants having established, prima facie, a lack of causation, the burden shifts to plaintiff to show that defendants are not entitled to judgment as a matter of law.

Plaintiff's submissions in opposition are insufficient to rebut defendants' prima facie showing. The affirmations of plaintiff's physicians "fail[ ] to address the findings of degeneration" (id.), and are based on medical examinations that were conducted at least a year following the accident. In the absence of any medical proof contemporaneous to the accident, plaintiff failed to raise an issue of fact sufficient to defeat defendants' motion (see Ifrach v Neiman, 306 AD2d 380 [2d Dept 2003]).

Accordingly, I would vote to affirm the order below.
Decision Date: December 14, 2006