Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered May 13, 2005. The order denied defendant's motion for summary judgment.

Order affirmed without costs.

The defendant moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The court below denied the motion and the instant appeal ensued.

In support of defendant's motion, one of defendant's examining physicians specified the degrees of motion in plaintiff's cervical spine without comparing these findings to the normal range of motion (see Welch v Penske Truck Leasing Corp., 29
AD3d 783 [2006]; Almonte v Andrews, 14 Misc 3d 143[A], 2007 NY Slip Op 50380[U] [App Term, 2d & 11th Jud Dists]). The defendant's other examining physician failed to set forth the objective tests used to determine that the 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 of establishing that plaintiff did not sustain a serious injury, the sufficiency of plaintiff's opposition papers need not be considered (see Madatova v Madatov, 27 AD3d 531 [2006]). Accordingly, the order denying defendant's motion is affirmed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 10, 2007