Lizhen Zheng v Weng Zhong-Yi

[*1] Lizhen Zheng v Weng Zhong-Yi 2007 NY Slip Op 52038(U) [17 Misc 3d 132(A)] Decided on October 19, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1655 Q C.

Lizhen Zheng and Rufang Zheng, Appellants,

against

Weng Zhong-Yi, Xiu Long Qu And Chi Hoe Seng, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered August 1, 2005. The order granted the motion by defendants Weng Zhong-Yi and Xiu Long Qu, and the cross motion by defendant Chi Hoe Seng, for summary judgment.

Order reversed without costs and motion by defendants Weng Zhong-Yi and Xiu Long Qu, and cross motion by defendant Chi Hoe Seng, for summary judgment denied.

The defendants moved and cross-moved for summary judgment on the ground that plaintiffs did not sustain a serious injury pursuant to Insurance Law § 5102 (d). A review of the moving papers reveals that defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. The affirmed medical reports of defendants' examining physician specified the degrees of motion in each plaintiff's lumbar spine without comparing those findings to the normal range of motion (Welch v Penske Truck Leasing Corp., 29 AD3d 783 [2006]; Almonte v Andrews, 14 Misc 3d 143[A], 2007 NY Slip Op 50380[U] [App Term, 2d & 11th Jud Dists]). Since the defendants failed to meet their initial burden of establishing a prima facie case, the sufficiency of the plaintiffs' opposition papers need not be considered (Tolstocheev v Bajrovic, 28 AD3d 473 [2006]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 19, 2007