| Phillips v Tolnep Limo Inc. |
| 2012 NY Slip Op 06849 [99 AD3d 534] |
| October 11, 2012 |
| Appellate Division, First Department |
| Dean Phillips, Appellant, et al., Plaintiff, v Tolnep LimoInc. et al., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about May 18,2011, which, insofar as appealed from, granted defendants' motion for summary judgmentdismissing plaintiff Dean Phillips' complaint based on the failure to establish a serious injurywithin the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants made a prima facie showing of entitlement to judgment as a matter of law as toplaintiff's claims of "permanent consequential" and "significant limitation of use" of his lumbarspine (Insurance Law § 5102 [d]). Defendants submitted expert medical reports findingnormal ranges of motion, as well as the report of a radiologist who opined that changes shown inan MRI of plaintiff were degenerative.
In opposition, plaintiff failed to raise a triable issue of fact as to his lumbar spine injuries. Hisphysician's measurement of a minor limitation in one plane of range of motion was deficient inraising a triable of fact as to whether plaintiff sustained a serious injury (see Canelo v Genolg Tr., Inc., 82AD3d 584 [1st Dept 2011]; see alsoLattan v Gretz Tr. Inc., 55 AD3d 449 [1st Dept 2008]). Such finding does not amount toa serious, or important, limitation of the use within the meaning of Insurance Law § 5102(d) (see Sone v Qamar, 68 AD3d566 [1st Dept 2009]).
Plaintiff's bill of particulars and deposition testimony refuted his 90/180-day claim, since[*2]he alleged that he was confined to home and bed for oneweek, after which time he returned to work (see Byong Yol Yi v Canela, 70 AD3d 584 [1st Dept 2010]).Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.