Simantov v Kipps Taxi, Inc.

Simantov v Kipps Taxi, Inc. 2009 NY Slip Op 09698 [68 AD3d 661] December 29, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Eirit Simantov, Respondent,
v
Kipps Taxi, Inc., et al., Appellants.

—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck (Elizabeth M. Hecht of counsel), for appellants.

Gary B. Pillersdorf & Associates, P.C., New York (Heidi L. Wickstrom of counsel), for respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered July 14, 2009, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. The range of motion findings of defendants' neurologist, who had not reviewed any of plaintiff's medical records, were not probative since they were not stated to be based on objective tests (see Linton v Nawaz, 62 AD3d 434, 438-439 [2009]; Glynn v Hopkins, 55 AD3d 498 [2008]), and their radiologist failed to address a number of the injuries claimed in the bill of particulars (see Menezes v Khan, 67 AD3d 654 [2d Dept 2009]; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815 [2009]). Furthermore, defendants only addressed plaintiff's claimed 90/180 day disability in reply (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]).

Defendants' failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiff's opposition to the motion (see Offman v Singh, 27 AD3d 284 [2006]). Concur—Mazzarelli, J.P., Catterson, Moskowitz, Richter and Manzanet-Daniels, JJ.