Opinion
2003-08388.
Decided April 19, 2004.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Glover, J.), dated August 4, 2003, which denied his 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).
Cullen and Dykman Bleakley Platt, LLP, Brooklyn, N.Y. (Thomas J. Abernethy of counsel), for appellant.
Michael G. LoRusso, Melville, N.Y. (Denise O'Rourke of counsel), for respondnet.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). The affirmation of the plaintiff's physician submitted in opposition to the defendant's motion failed to set forth the tests he used to arrive at the conclusion that the plaintiff sustained a serious injury ( see Kauderer v. Penta, 261 A.D.2d 365) . In addition, in the absence of any objective medical evidence of a related disability or restriction, the mere existence of a bulging disc is not conclusive evidence of a serious injury ( see Guzman v. Michael Mgt., 266 A.D.2d 508).
The plaintiff's statement that he was unable to return to work for five months following the accident was not supported by any competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days as a result of the subject accident ( see Sainte-Aime v. Ho, 274 A.D.2d 569; Jackson v. New York City Tr. Auth., 273 A.D.2d 200; Greene v. Miranda, 272 A.D.2d 441; Arshad v. Gomer, 268 A.D.2d 450; Bennet v. Reed, 263 A.D.2d 800; DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499).
Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted.
SANTUCCI, J.P., SMITH, LUCIANO and ADAMS, JJ., concur.