In an action to recover damages for personal injuries, the plaintiff appealed from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), which granted the defendants motion for summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d). The Appellate Division reversed.

The defendants relied on the affirmed medical report of their examining orthopedic surgeon. During that experts examination of the plaintiff, which took place a little more than two months after the subject accident, the expert noted that the plaintiff had full flexion, extension, and lateral flexion in his cervical spine range of motion. However, he further concluded that the plaintiff had 60 degrees of rotation bilaterally upon examination.

While the expert set forth this finding, he failed to compare that finding to what is considered the normal range of motion. Since there was no comparative quantification, it cannot be concluded that the plaintiffs rotation, bilaterally, was normal or that any limitation was insignificant within the meaning of the no-fault statute (see Licari v. Elliot, 57 N.Y.2d 230; Gaddy v. Eyler, 79 N.Y.2d 955, 957). Since the defendants failed to establish their prima facie burden, we need not consider whether the plaintiffs papers submitted in opposition raised a triable issue of fact.

Hernandez v. Stanley, 2006 NY Slip Op 08092 (2d Dept 2006)