Opinion
June 7, 1991
Appeal from the Supreme Court, Monroe County, Rosenbloom, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Balio, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiff failed to raise a genuine issue of fact regarding his contention that he suffered a "serious injury" within the meaning of Insurance Law § 5102 (d). One of plaintiff's physicians opined that plaintiff suffered a "soft tissue injury in the form of stretching of the muscles and ligaments" constituting a "mild weakness" of the musculature which should be a "minimal problem and should not handicap the patient in the vast majority of his daily activities". Another physician who treated plaintiff indicated that plaintiff exhibited "considerable spasm of the right trapezius muscle" but that the motor strength of the shoulder was "entirely within normal limits" and plaintiff had "full range of motion". Plaintiff lost only two days of work. The evidentiary materials submitted by plaintiff fail to raise a triable issue of fact whether plaintiff suffered a significant limitation of use of a body function or system or a permanent consequential limitation of use (see, Scheer v Koubek, 70 N.Y.2d 678; Egan v Greene, 154 A.D.2d 574; Palmer v Amaker, 141 A.D.2d 622; Kordana v Pomellito, 121 A.D.2d 783, appeal dismissed 68 N.Y.2d 848).