Melfi v Hellex Car Rental Sys. Inc.

[*1] Melfi v Hellex Car Rental Sys. Inc. 2004 NY Slip Op 51249(U) Decided on October 20, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-1649 K C

MICHAEL MELFI, Appellant,

against

HELLEX CAR RENTAL SYS. INC., DOLLAR RENT A CAR SYSTEMS, INC., and AVI OSTER, Respondents, -and- ONALD SERVICE, INC., and RAYMOND L. JOHNSON, Defendants.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered August 11, 2003, as granted the cross motion by defendants Hellex Car Rental Sys. Inc., Dollar Rent A Car Systems, Inc., and Avi Oster for summary judgment.

Order insofar as appealed from unanimously reversed without costs and cross motion by defendants Hellex Car Rental Sys. Inc., Dollar Rent A Car Systems, Inc., and Avi Oster for summary judgment denied.

Defendants Hellex Car Rental Sys. Inc., Dollar Car Rent A Car Systems, Inc., and [*2]Avi Oster cross-moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). In support of the cross motion, the defendants' doctor stated that a report of an MRI examination of plaintiff disclosed a disc herniation at C4-C5. While the doctor set forth the degrees of motion of plaintiff's cervical and lumbosacral spine, he failed to state whether these measurements were normal or represented limitations of motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Moreover, he failed to state what objective tests he performed. Consequently, defendants' cross
motion should be denied on the ground that they failed to establish their entitlement to judgment as a matter of law (Black v Robinson, 305 AD2d 438 [2003]). In view of the foregoing, the sufficiency of the plaintiff's opposition papers need not be considered (Aronov v Leybovich, 3 AD3d 511 [2004]).
Decision Date: October 20, 2004