| Rossi v Alhassan |
| 2008 NY Slip Op 01387 [48 AD3d 270] |
| February 14, 2008 |
| Appellate Division, First Department |
| Rosemary Rossi et al., Plaintiffs, v Mallam Alhassan et al.,Defendants. Mallam Alhassan, Respondent, v Mahamad Nizam et al., Appellants, et al.,Defendant. |
—[*1] Segal & Lax, New York City (Patrick Daniel Gatti of counsel), for respondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered July 31, 2007,which denied the motion of defendants Mahamad Nizam and Rajai Lutfi for summary judgmentdismissing the complaint as against them, unanimously reversed, on the law, without costs, themotion granted, and the complaint dismissed as against these defendants. The Clerk is directed toenter judgment accordingly.
The affirmed medical reports of defendants' orthopedist and neurologist, detailing theobjective tests they performed on examination, finding that plaintiff had full range of motion inhis cervical and lumbar spine, and concluding that plaintiff had no ongoing impairment resultingfrom the accident, satisfied defendants' burden of establishing prima facie that plaintiff did notsuffer a serious injury pursuant to Insurance Law § 5102 (d) (see Nagbe v Minigreen HackingGroup, 22 AD3d 326 [2005]). Plaintiff, however, failed to raise a triable issue ofmaterial fact as to whether his injury was serious. While he submitted evidence of pain, as wellas evidence of herniated and bulging discs, he failed to submit the requisite contemporaneousquantitative assessment of range-of-motion limitations based on objective testing (see Thompson v Abbasi, 15 AD3d95, 97 [2005]; Arjona vCalcano, 7 AD3d 279 [2004]). He also failed to offer competent medical proof that hecould not perform substantially all his daily activities for 90 of the first 180 days following theaccident [*2]because of an injury or impairment caused by theaccident (see Uddin v Cooper, 32AD3d 270, 272 [2006], lv denied 8 NY3d 808 [2007]; Nelson v Distant, 308AD2d 338, 340 [2003]). Concur—Lippman, P.J., Tom, Buckley and Gonzalez, JJ.[See 2007 NY Slip Op 32361(U).]