Mary Mabire, Appellant, v. Eleanore A. Kennel, Respondent

Mary Mabire, Appellant, v Eleanore A. Kennel, Respondent. [707 NYS2d 874] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), dated March 19, 1999, which granted the defendant’s 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). Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. In support of her motion for summary judgment, the defendant relied upon a medical report of the plaintiff’s doctor which was based on an examination of the plaintiff taken a week after the accident and a medical report of the defendant’s doctor which was based on an examination of the plaintiff taken a year and a half later. Both reports indicated that the plaintiff had a 66% restriction in range of motion in the lumbar spine. Under these circumstances, the defendant failed to meet her burden of establishing entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Therefore, we need not consider whether the plaintiff’s papers in opposition were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.