Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered March 31, 2008, deemed from a judgment of the same court entered May 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 31, 2008 order granting a motion by defendants John G. Colin and Ramses R. Rabel, and a cross motion by defendant Emmanuel Borgella, for summary judgment, dismissed the complaint.

Judgment reversed without costs, order granting the motion by defendants John G. Colin and Ramses R. Rabel, and the cross motion by defendant Emmanuel Borgella, for summary judgment vacated, and the motion by defendants John G. Colin and Ramses R. Rabel, and the cross motion by defendant Emmanuel Borgella, for summary judgment denied.

Plaintiff commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. Defendants John G. Colin and Ramses R. Rabel moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendant Emmanuel Borgella cross-moved for summary judgment dismissing the complaint and adopted the arguments set forth by defendants Colin and Rabel. The Civil Court granted the motion and cross motion, and the instant appeal by plaintiff ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

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]). In support of the motion and cross motion, defendants relied upon, inter alia, the report of their examining neurologist, who examined plaintiff nearly two years after the accident. The neurologist found that plaintiff's leg elevation was to 30 degrees on both sides. "Thus, a clear [*2]limitation was noted, the full extent of which is not known due to the examining neurologist's failure to compare these numerical findings to what is normal" (Gaccione v Krebs, 53 AD3d 524, 524-525 [2008]; see Holtzman v Bishop, 35 AD3d 815 [2006]). Furthermore, defendants' doctors never adequately addressed the claim that plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Breland v Karnak Corp., 50 AD3d 613 [2008]).

Since defendants failed to meet their prima facie burden, it is unnecessary to reach the question of whether plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact (see Wade v Allied Bldg. Prods. Corp., 41 AD3d 466 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Accordingly, the judgment is reversed, the order granting the motion by defendants Colin and Rabel, and the cross motion by defendant Borgella, is vacated, and the motion by defendants Colin and Rabel, and the cross motion by defendant Borgella, for summary judgment are denied.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 17, 2009