| Lattan v Gretz Tr. Inc. |
| 2008 NY Slip Op 08167 [55 AD3d 449] |
| October 28, 2008 |
| Appellate Division, First Department |
| Cheryl Lattan et al., Respondents, v Gretz Transit Inc. etal., Appellants. |
—[*1] Victor Tsai, New York, for respondents.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered January 28, 2008,which denied defendants' motion for summary judgment dismissing the complaint on the groundthat plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to dismiss the claims based on cervical, lumbar and rightknee injuries, and otherwise affirmed, without costs.
Defendants demonstrated prima facie that plaintiff did not sustain a serious injury to hercervical or lumbar spine or right knee, by submitting the affirmed reports of an orthopedicsurgeon and a neurologist finding normal cervical and lumbosacral ranges of motion and noevidence of disability and a radiologist's affirmed report finding a preexisting degenerativecondition of the cervical spine and no evidence of recent trauma to the right knee. Thus, theburden shifted to plaintiff (Franchini v Palmieri, 1 NY3d 536 [2003]; Smith vBrito, 23 AD3d 273 [2005]). In opposition, plaintiff's doctor addressed the cervical injuryonly and failed to raise a triable issue of fact, since he failed to quantify his findings at each planeof motion, to identify any objective tests, to compare his findings to normal ranges, and toaddress the degenerative changes found (see Rodriguez v Abdallah, 51 AD3d 590, 592[2008]; Smith v Cherubini, 44 AD3d 520 [2007]).
Plaintiff's testimony that she was confined to bed and out of work for four months wasinsufficient to establish a serious injury, in the absence of "competent medical proof" of an injuryor impairment that prevented her from performing substantially all her daily activities for at least90 of the first 180 days following the occurrence of the injury (see Rossi v Alhassan, 48AD3d 270 [2008]).
Defendants' failure to make a prima facie showing as to plaintiff's jaw injuries, includingtemporomandibular dysfunction, required the denial of that aspect of their motion, regardless ofthe claimed insufficiency of plaintiff's opposition (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Concur—Tom, J.P., Gonzalez, Williams, Moskowitzand Freedman, JJ.