Opinion
2014-10162, Index No. 11351/12.
09-02-2015
Christelle DURAND, appellant, v. Gerald URICK, respondent.
Harold Solomon, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for appellant. DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P. O'Shaughnessy of counsel), for respondent.
Harold Solomon, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for appellant.
DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P. O'Shaughnessy of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.
Opinion
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), entered September 8, 2014, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted reports from treating physicians who concluded that she suffered from range-of-motion limitations as a result of the subject accident. However, the reports do not identify any objective tests or tests which were utilized to measure range of motion, and thus do not support the limitation conclusion (see Gibbs v. Hee Hong, 63 A.D.3d 559, 881 N.Y.S.2d 415 ; Exilus v. Nicholas, 26 A.D.3d 457, 458, 809 N.Y.S.2d 458 ; Barrett v. Jeannot, 18 A.D.3d 679, 795 N.Y.S.2d 727 ; Zavala v. DeSantis, 1 A.D.3d 354, 766 N.Y.S.2d 598 ; Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741 ; see also Bacon v. Bostany, 104 A.D.3d 625, 627, 960 N.Y.S.2d 190 ). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.