Mensah v Salah Enters., Inc.

Mensah v Salah Enters., Inc. 2011 NY Slip Op 08987 Decided on December 13, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2011
Mazzarelli, J.P., Andrias, Renwick, Freedman, Manzanet-Daniels, JJ.
6321 103717/06

[*1]Charles Mensah, Plaintiff-Respondent,

v

Salah Enterprises, Inc., et al, Defendants-Appellants.




Steven N. Feinman, White Plains, for Salah Enterprises, Inc. and
Sammy Kababji, appellants.
Law Offices of Nancy I. Isserlis, Long Island City (Lawrence R.
Miles of counsel), for Grand Style Transportation, Inc., and Juan
R. Portal, appellants.
Apicella & Schlesinger, New York (Alan C. Kestenbaum of
counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered July 12, 2010, which, insofar as appealed from, in this action for personal injuries arising out of a motor vehicle accident, denied defendants' cross motions 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), unanimously affirmed, without costs.

Defendants did not establish their entitlement to judgment as a matter of law. Defendants submitted affirmed medical reports of an orthopedist and a neurologist, who both examined plaintiff and found that he had normal ranges of motion in his lumbar spine and knees. However, the failure to indicate the objective tests used to determine the range of motion in plaintiff's lumbar spine precludes the grant of summary judgment
(see Garvey v Talukder, 74 AD3d 477 [2010]; Beazer v Webster, 70 AD3d 587 [2010]).

In view of the foregoing, it is not necessary to consider plaintiff's opposition to the motion (see Reyes v Diaz, 82 AD3d 484 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2011

CLERK