Opinion
February 7, 2001.
Appeals from Order of Supreme Court, Oswego County, Nicholson, J. — Summary Judgment.
PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE AND LAWTON, JJ.
Order unanimously reversed on the law without costs, motion and cross motion granted and complaint dismissed.
Memorandum:
Supreme Court erred in denying defendants' motion and cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendants met their initial burden by submitting the affidavit of their medical expert, who "opined therein that there is no objective evidence that plaintiff sustained a serious injury" ( Muratore v. Tierney, 229 A.D.2d 1018). Plaintiff failed in opposition to present any objective medical evidence to support his claim of serious injury. Although the office record of plaintiff's attending physician notes a finding of restricted range of motion of the cervical spine, neither that record nor any physician's affidavit or medical report shows that such limitation was "objectively measured or quantified" ( Forte v. Vaccaro, 175 A.D.2d 153; see, Watt v. Eastern Investigative Bur., 273 A.D.2d 226, 227-228; see also, Lynch v. Williams, 265 A.D.2d 870, 871). Thus, plaintiff failed to raise an issue of fact whether he sustained either a permanent consequential limitation of use of a body organ or member ( see, Barbarulo v. Allery, 271 A.D.2d 897, 899-900; Stowell v Safee, 251 A.D.2d 1026; see generally, Scheer v. Koubek, 70 N.Y.2d 678, 679) or a medically determined injury or impairment that prevented him from performing substantially all of his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident ( see, Watt v. Eastern Investigative Bur., supra, at 228 ; Bennett v. Reed, 263 A.D.2d 800, 801; Logan v. Laidlaw School Tr., 175 A.D.2d 568, 568-569; see generally, Scheer v. Koubek, supra, at 679).