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ROBERT MEYER et al., Respondents, v. GUIDO A. GALLARDO et al., Appellants.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

To be entitled to summary judgment, the defendants were required to establish a prima facie case that the plaintiff Robert Meyer (hereinafter the injured plaintiff) did not a sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see, Gaddy v. Eyler, 79 N.Y.2d 955; Moore v. Tappen, 242 A.D.2d 526; Healea v. Andriani, 158 A.D.2d 587). The defendants failed to do so. One of the physicians who examined the injured plaintiff on behalf of the defendants stated that the lateral rotation of his cervical spine was 80 degrees to the right and 50 degrees to the left. This alone raises an issue of fact as to whether the injured plaintiff suffered a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]; see, Cesar v. Felix, 181 A.D.2d 852, 853; Healea v. Andriani, supra; see also, Parker v. Defontaine-Stratton, 231 A.D.2d 412, 413). Moreover, the defendants did not address the plaintiffs allegation that he suffered a partial tear of the rotator cuff of his left shoulder ( see, Minori v. Hernandez Trucking Co., 239 A.D.2d 322, 323).

Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.

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MEYER v. GALLARDO
(Apr 19, 1999)