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IN RE OROURKE

Appellate Division of the Supreme Court of New York, Second Department.
Feb 23, 2010
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Ordered that the order reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law ยง 5102 (d) as a result of the subject accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant's own examining neurologist reported findings of limitations in the ranges of motion in the cervical and lumbar regions of the injured plaintiffs spine ( see Powell v Prego, 59 AD3d 417; Norme v Ajons, 57 AD3d 749; Wright v AAA Constr. Servs., Inc., 49 AD3d 531; Umar v Ohrnberger, 46 AD3d 543; Bentivegna v Stein, 42 AD3d 555), and he failed to "explain or substantiate, with any objective medical evidence, the basis for his conclusion that the noted limitations were self-restricted" ( Bengaly v Singh, 68 AD3d 1030, 1031; see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734; Chang Ai Chung v Levy, 66 AD3d 946; Moriera v Durango, 65 AD3d 1024). Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the plaintiffs opposition papers ( see Held v Heideman, 63 AD3d 1105; Landman v Sarcona, 63 AD3d 690; Alam v Karim, 61 AD3d 904; Liautaud v Joseph, 59 AD3d 394).