| Harris v Ariel Transp. Corp. |
| 2008 NY Slip Op 07561 [55 AD3d 323] |
| October 7, 2008 |
| Appellate Division, First Department |
| Selena S. Harris, Appellant, v Ariel Transportation Corp. etal., Respondents. |
—[*1] DeBrosse & Studley, LLP, Jamaica Estates (Mitchell J. Studley of counsel), for ArielTransportation Corp. and Fallou Diop, respondents. O'Connor Redd, LLP, White Plains (Alak Shah of counsel), for Paul Bardolf,respondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered August 1, 2007,which granted defendants' motions for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Based on specifically detailed reports from a specialist in rehabilitative medicine, twoneurologists and two orthopedic surgeons, diagnosing plaintiff with resolved cervicalsprain/strain and full cervical and lumbar ranges of motion, defendants met their initial burden ofdemonstrating, prima facie, that plaintiff had not sustained a serious injury within the meaning ofInsurance Law § 5102 (d). Plaintiff did not meet her consequent burden because hermedical submissions did not satisfy the requirement that there be some objective basis for findinga significant injury or impairment (see Scheer v Koubek, 70 NY2d 678, 679 [1987]). Theaffidavit of her chiropractor cited cervical muscle spasms resulting in a decreased range ofmotion of the cervical spine, and chronic neck pain and stiffness. Medical testimony concerningobservations of a spasm may constitute objective evidence in support of a serious injury;however, the spasm must be objectively ascertained (see Toure v Avis Rent A Car Sys.,98 NY2d 345, 357 [2002]). The affidavit did not cite any objective basis for the chiropractor'sconclusion that plaintiff suffered from muscle spasms or the test performed that induced thespasm. It also did not identify the objective tests utilized in deriving the measurements of thelimitations of motion. The affirmation of plaintiff's neurologist was insufficient to raise a triableissue of fact [*2]in that it did not explain the factual basis for theconclusion that the limitations of motion were causally related to the accident, where theexamination took place two years after the accident. Concur—Lippman, P.J., Gonzalez,Sweeny, Catterson and DeGrasse, JJ. [See 2007 NY Slip Op 32376(U).]