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VIKTOR TCHJEVSKAIA, Respondent, v. YAAKOV CHASE et al., Appellants.

Ordered that the order is affirmed, with costs.

The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see Meiheng Qu v. Doshna, 12 AD3d 578; Rodriguez v. J K Taxi, 12 AD3d 434). The affirmation of the defendants' examining orthopedist discloses that the orthopedist actually recorded limitations in the plaintiff's ranges of motion despite his ultimate conclusion that the plaintiff did not sustain a serious injury. Under these circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers ( see Coscia v. 938 Trading Corp., 283 AD2d 538; Chaplin v. Taylor, 273 AD2d 188; Mariaca-Olmos v. Mizrhy, 226 AD2d 437).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment.

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TCHJEVSKAIA v. CHASE
(Feb 7, 2005)