Opinion
April 17, 1989
Appeal from the Supreme Court, Nassau County (Yachnin, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed as against the appellants.
The appellants contend that the plaintiffs failed, as a matter of law, to prove that the infant plaintiff suffered a "serious injury" within the meaning of Insurance Law § 5102 (d). We agree.
It is for the court to determine in the first instance whether a prima facie showing of "serious injury" has been made out (see, Licari v. Elliott, 57 N.Y.2d 230; Palmer v. Amaker, 141 A.D.2d 622). In the instant case we find that the plaintiffs have failed to meet that burden (see, De Filippo v. White, 101 A.D.2d 801).
While the plaintiffs may have established that the infant plaintiff initially suffered some limitation in the movement of her neck or back from the accident, they failed to prove that that restriction constituted a significant limitation of use of a body organ or member (see, Insurance Law § 5102 [d]; Licari v Elliott, supra, at 239; Grotzer v. Levy, 133 A.D.2d 67; Hezekiah v. Williams, 81 A.D.2d 261). Moreover, the plaintiffs' expert stated that the infant plaintiff's range of motion was "greatly improved" just two weeks after the accident and that she had an "excellent range of motion" approximately four months thereafter (see, Thrall v. City of Syracuse, 60 N.Y.2d 950).
We also find that the plaintiffs failed to prove that the injury prevented the infant plaintiff from "performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury" (Insurance Law § 5102 [d]; see, Licari v. Elliott, supra; De Filippo v. White, supra). Although the record indicates that the infant plaintiff did not attend high school classes during June 1985 and that she quit a part-time job after the accident, there is no indication in the record that she was prevented from performing her customary and daily activities during the months of July and August and it is undisputed that she returned to school as scheduled in September. We therefore conclude that the plaintiff failed to meet the burden of establishing this category of serious injury as well (see, De Filippo v. White, supra). Rubin, J.P., Kooper, Sullivan and Balletta, JJ., concur.