Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered May 23, 2006, deemed from a judgment of said court entered December 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 23, 2006 order granting a motion by defendants Louise Abrams and Martin Abrams, and a cross motion by defendants Carlos Sanchez and Frontier USA, Inc., for summary judgment on the threshold category of serious injury under Insurance Law § 5102 (d), dismissed the complaint.

Judgment reversed without costs, order dated May 23, 2006 granting a motion by defendants Louise Abrams and Martin Abrams, and a cross motion by defendants
Carlos Sanchez and Frontier USA, Inc., for summary judgment on the threshold category of serious injury under Insurance Law § 5102 (d) vacated and defendants' motion and cross motion denied.

Defendants Louise Abrams and Martin Abrams moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendants Carlos Sanchez and Frontier USA, Inc. cross-moved for the same relief and sought leave of the court to join the Abrams' motion as to the issue of serious injury. The court granted the motion and cross motion for summary judgment and dismissed the complaint. Plaintiff's appeal, deemed from the judgment entered pursuant to the order granting the motion and cross motion for summary judgment on the threshold category of serious injury, brings the order up for review.

Defendants failed to meet their prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). To establish their entitlement to summary judgment on the issue of serious injury, [*2]defendants were required to submit admissible medical evidence demonstrating that plaintiff's range of motion in her cervical spine and left shoulder were "not significantly limited in comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height" (Frey v Fedorciuc, 36 AD3d 587, 588 [2007]; see Powell v Alade, 31 AD3d 523, 523 [2006]).

Defendants predicated their respective motions for summary judgment upon the affirmed medical report of their examining orthopedist, who, following range of motion testing, assigned numerical values to the range of motion for plaintiff's cervical spine, both shoulders, elbows, wrists and hands. Nowhere were these findings compared against what is a normal range of motion (see Spektor v Dichy, 34 AD3d 557 [2006]). The physician's failure to set forth such a comparison requires denial of the motion (id.). Since defendants failed to satisfy their initial burden on their motion and cross motion, it is unnecessary to consider whether plaintiff's papers in opposition were sufficient to raise a triable issue of fact (see Guzman v Bowen, 46 AD3d 617 [2007]; Walker v Village of Ossining, 18 AD3d 867 [2005]; Tchjevskaia v Chase, 15 AD3d 389 [2005]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 12, 2008