| LaMarre v Michelle Taxi, Inc. |
| 2009 NY Slip Op 02331 [60 AD3d 911] |
| March 24, 2009 |
| Appellate Division, Second Department |
| James LaMarre, Respondent-Appellant, v Michelle Taxi,Inc., et al., Appellants-Respondents. |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Lamont K. Rodgers of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Kings County (Jacobson, J.), dated June 3, 2008, as, in effect,denied that branch of their motion which was for summary judgment dismissing so much of thecomplaint as alleged that the plaintiff sustained a serious injury under the medically-determinedinjury or impairment of a nonpermanent nature category of Insurance Law § 5102 (d) as aresult of the subject accident, and the plaintiff cross-appeals from so much of the same order as,in effect, granted those branches of the defendants' motion which were for summary judgmentdismissing so much of the complaint as alleged that he sustained a serious injury under thepermanent consequential limitation of use and/or significant limitation of use categories underInsurance Law § 5102 (d) as a result of the subject accident.
Ordered that the order is reversed insofar as appealed from, on the law, and that branch ofthe defendants' motion which was for summary judgment dismissing so much of the complaint asalleged that the plaintiff sustained a serious injury under the medically-determined injury orimpairment of a nonpermanent nature category of Insurance Law § 5102 (d) as a result ofthe subject accident is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.[*2]
On their motion for summary judgment, the defendantsmet their prima facie burden of showing that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Tourev Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]).In opposition, the plaintiff failed to raise a triable issue of fact as to whether he sustained aserious injury under the permanent consequential limitation of use and/or significant limitationof use categories under Insurance Law § 5102 (d) as a result of the subject accident. Theplaintiff relied upon an affirmed report from his treating physician, based on a recent physicalexamination. However, the physician indicated that he only examined the plaintiff's lumbarspine, concluded, without making any range of motion findings, that the lumbar spine had a"limitation," and failed to set forth the objective tests he performed to arrive at his conclusion(see Sapienza v Ruggiero, 57 AD3d 643 [2008]; Gastaldi v Chen, 56 AD3d 420,421 [2008]; Budhram v Ogunmoyin, 53 AD3d 640, 641 [2008]).
Furthermore, contrary to the Supreme Court's determination, the plaintiff also failed to raisea triable issue of fact as to whether he sustained a serious injury under the medically-determinedinjury or impairment of a nonpermanent nature category of Insurance Law § 5102 (d) as aresult of the subject accident. In this regard, the plaintiff, whose deposition testimony establishedthat he returned to work approximately 30 days after the accident and missed approximately 60days of work, failed to proffer any competent medical evidence to establish that he sustained amedically-determined injury or impairment of a nonpermanent nature which prevented him fromperforming substantially all of the material acts constituting his usual and customary activitiesfor not less than 90 of the 180 days immediately following the accident (see Itkin vDevlin, 286 AD2d 477, 478 [2001]). Spolzino, J.P., Ritter, Covello and Belen, JJ., concur.