Ganthier v Sanger

[*1] Ganthier v Sanger 2006 NY Slip Op 52550(U) [14 Misc 3d 134(A)] Decided on December 11, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1602 Q C.

Marie J. Ganthier and KESNER GANTHIER, Appellants,

against

Edward Sanger, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Denis Butler, J.), entered July 5, 2005. The order granted defendant's motion for summary judgment.

Order reversed without costs and defendant's motion for summary judgment denied.

Defendant moved for summary judgment on the ground that the injured plaintiff, Marie J. Ganthier, did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Despite the conclusion of one of defendant's examining physicians that Marie J. Ganthier did not sustain a serious injury, he did not compare certain limitations of motion of her lumbar spine to what is normal. Absent such comparative quantification, this court cannot conclude that the decreased lumbar flexion is mild, minor or slight, so as to be considered insignificant within the meaning of the No-Fault Law (see Yashayev v Rodriguez, 28 AD3d 651 [2006]; Tchjevskaia v Chase, 15 AD3d 389 [2005]; Marquez v Oballe, 14 AD3d 667 [2005]). Accordingly, defendant's moving papers were insufficient to establish prima facie entitlement to judgment as a matter of law and did not shift the burden to plaintiff. Under the circumstances, it is unnecessary to consider the sufficiency of plaintiff's opposition papers (see Torres v Safety Cab Corp., 25 AD3d 548 [2006]; Barrett v Jeannot, 18 AD3d 679 [2005]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur. [*2]
Decision Date: December 11, 2006