Caballero v Fev Taxi Corp.
2008 NY Slip Op 02219 [49 AD3d 387]
March 13, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008


Amador Caballero, Respondent,
v
Fev Taxi Corp. et al., Appellants.

[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York City (Stacy R. Seldin of counsel), for appellants.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered June 25, 2007, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to meet their initial burden of establishing, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affirmed reports of the neurologist and orthopedist who examined plaintiff failed to set forth the objective tests performed to support their claims that there was no limitation of range of motion, and did not address the objective findings of plaintiff's MRIs showing, inter alia, herniated and bulging discs (see Nix v Yang Gao Xiang, 19 AD3d 227 [2005]). Defendants' failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiff's opposition to the motion (see Offman v Singh, 27 AD3d 284 [2006]). Concur—Saxe, J.P., Gonzalez, Buckley and Acosta, JJ.