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NAYDIS v. LA TRANSPORTATION CORP

Appellate Division of the Supreme Court of New York, Second Department.
Jan 31, 2005
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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 Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955). The affirmation of the defendants' examining physician failed to "set forth the objective test or tests performed supporting [his] claim that there was no limitation of range of motion," thus warranting denial of summary judgment on the ground that the defendants failed to establish their entitlement to judgment as a matter of law ( see Black v. Robinson, 305 AD2d 438; see also Zavala v. DeSantis, 1 AD3d 354; Gamberg v. Romeo, 289 AD2d 525; Junco v. Ranzi, 288 AD2d 440).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).