| Lloyd v Green |
| 2007 NY Slip Op 08844 [45 AD3d 373] |
| November 15, 2007 |
| Appellate Division, First Department |
| Jamaal K. Lloyd et al., Appellants, v Burnett L. Green etal., Respondents. |
—[*1] Diamond, Rutman, Costello & Silberglitt, New York City (John Burnett of counsel), forrespondents.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered December11, 2006, which denied plaintiff's motion for renewal, unanimously affirmed, without costs.Appeal from order, same court and Justice, entered on or about June 28, 2006, which granteddefendants' motion for summary judgment dismissing the complaint, unanimously dismissed,without costs.
The appeal from the earlier order is dismissed, as the court did not render a decision based ona complete record. The subsequent order, which in effect adhered to the prior determination, wasbased on a complete record.
Defendants satisfied their burden of establishing prima facie entitlement to summaryjudgment, on the ground that there was no "serious injury" under Insurance Law § 5102(d), by submitting Dr. Epstein's sufficiently detailed affidavit in which he concluded thatalthough the injured plaintiff's "condition" was caused by the November 28, 2003 accident, nopermanent injury was sustained thereby (see Perez v Hilarion, 36 AD3d 536 [2007]). Defendants alsosubmitted a copy of the injured plaintiff's deposition in which he admitted attending classes onthe Monday after the accident and continued going to classes thereafter; in short, he was able toperform his usual and customary daily activities after the accident (see Uddin v Cooper, 32 AD3d270, 271 [2006], lv denied 8 NY3d 808 [2007]; Copeland v Kasalica, 6 AD3d 253, 254 [2004]).
Although the cervical MRI indicated a herniated disc, which may constitute a serious injury,an injured plaintiff "must still offer some objective evidence of the extent or degree of his allegedphysical limitations and their duration, resulting from the disc injury" (Arjona v Calcano, 7 AD3d 279,280 [2004]). The affirmed report submitted by plaintiffs' medical expert fails to identify ordescribe the objective medical tests employed in measuring the alleged restrictions in range ofmotion, or to pinpoint the injured plaintiff's "muscle spasm, with trigger points" (Shaw v Looking Glass Assoc., LP, 8AD3d 100, 103 [2004]). Findings based on subjective complaints of pain are simplyinsufficient to raise a triable issue under section 5102 (d) (see Arrowood v Lowinger, 294AD2d 315, 316 [2002]). Plaintiffs' submissions also lacked objective findings of restrictioncontemporaneous with the accident (seeThompson v Abbasi, 15 AD3d 95, 98 [2005]). Without [*2]more, the allegations raised in the injured plaintiff'saffidavit—that he was unable to participate on the school's track team, or engage in otherrecreational sports—were insufficient to raise a triable issue that he did, in fact, sustain aserious injury under the statute (seeGrimes-Carrion v Carroll, 17 AD3d 296, 297 [2005]).
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Lippman, P.J., Andrias, Nardelli, Gonzalez and Kavanagh, JJ.