Opinion
2005-1166 Q C.
Decided March 27, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Dawn Siegal, J.), entered May 5, 2005. The order granted the motion by defendant Jean R. Precil and the cross motion by defendants Elrac, Inc. and Leouenta Marshall for summary judgment, and denied plaintiff's cross motion for summary judgment on the issue of liability.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
The affirmed medical reports submitted by defendants made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). One of the doctors conducted tests and found plaintiff's range of motion of her cervical and lumbar spines to be fully within normal limits. The burden, therefore, shifted to the plaintiff to raise a triable issue of fact that she sustained a serious injury ( see Gaddy v. Eyler, 79 NY2d 955).
The plaintiff unsuccessfully opposed the motion. The plaintiff's doctor submitted two affirmations. The first one was based on an examination performed the day after the automobile accident. In it, the doctor failed to specify the objective tests he performed in arriving at his conclusion concerning restrictions in the range of motion of plaintiff's cervical spine ( see Mohammed v. Gonzalez, 1 AD3d 328). The second affirmation, dated more than three and a half years later, specified degrees of the range of motion the doctor found in the plaintiff's lumbar and cervical spines but failed to compare these findings to the normal range of motion, thereby leaving the court to speculate as to the meaning of those figures. In addition, the plaintiff's physician failed to adequately set forth the objective medical tests he performed to arrive at his general conclusion that the plaintiff sustained a loss in the movement of the cervical and lumbar regions of her spine ( see Jackson v. Colvert, 24 AD3d 420). Thus, the proof failed to objectively demonstrate that the plaintiff sustained a permanent consequential or significant limitation of use of her lumbar and/or cervical spines as a result of the accident ( see Manceri v. Bowe, 19 AD3d 462). Finally, the plaintiff did not present competent medical evidence to support her claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days following the accident ( Jackson v. Colvert, 24 AD3d 420, supra).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.