| Barnes v Estes |
| 2007 NY Slip Op 10326 [46 AD3d 1441] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| David R. Barnes et al., Appellants, v Victor L. Estes et al.,Respondents. |
—[*1] Thorn Gershon Tymann and Bonanni, LLP, Albany (Erin Mead of counsel), fordefendants-respondents.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (DonnaM. Siwek, J.), entered August 9, 2006 in a personal injury action. The order and judgment,among other things, granted defendants' motion for summary judgment dismissing the complaint.
It is hereby ordered that the order and judgment so appealed from be and the same hereby isunanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by David R. Barnes (plaintiff) when the motor vehicle in which he was a passengercollided with a truck owned by defendant Ryder Truck Rental, Inc. Defendant Victor L. Esteswas driving the truck in the course of his employment with defendant Sherwood FoodDistributors Partnership of Orleans International & Regal Packing, Inc. Supreme Court properlygranted defendants' motion for summary judgment dismissing the complaint on the ground thatplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).We reject plaintiffs' contention that the court erred in granting the motion under the permanentconsequential limitation of use category. Defendants met their initial burden with respect to thatcategory by submitting the affirmation of a physician who examined plaintiff on defendants'behalf, and plaintiffs failed to raise a triable issue of fact. According to the affirmation ofdefendants' examining physician, the CT scan and MRI studies did not indicate that plaintiffsuffered any acute injury as a result of the accident, and the bulging discs at L3-4, L4-5 andL5-S1 were due to "congenital abnormalities" (see Moore v Gawel, 37 AD3d 1158, 1159 [2007]; Giraldo v Mandanici, 24 AD3d419 [2005]; Fountain v Sullivan, 261 AD2d 795, 795-796 [1999]). Althoughplaintiffs submitted the requisite objective evidence of plaintiff's bulging discs, they also wererequired to provide the evaluation of an expert indicating "either 'a numeric percentage of [the]plaintiff's loss of range of motion' or a 'qualitative assessment of [the] plaintiff's condition. . . , provided that the evaluation . . . compares the plaintiff'slimitations to the normal [*2]function, purpose and use of theaffected body organ, member, function or system' " (Parkhill v Cleary, 305 AD2d 1088,1089 [2003], quoting Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; see also Patterson v NY Alarm ResponseCorp., 45 AD3d 656 [2007]; Guzman v Michael Mgt., 266 AD2d 508 [1999]).Here, the affirmation of plaintiff's treating physician does not provide a numeric percentagerepresenting plaintiff's loss of range of motion, nor does it provide a qualitative comparison ofplaintiff's limitations to the normal function of plaintiff's spine. Present—Scudder, P.J.,Gorski, Lunn, Fahey and Green, JJ.