Opinion
2001-08247
Submitted September 18, 2002.
October 15, 2002.
In an action to recover damages for personal injuries and property damage, the defendants Gloria Randisi and Steven Basic appeal, and the defendants Ronald Fishman and Adam Fishman separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated July 16, 2001, as denied those branches of their respective motions which were for summary judgment dismissing the cause of action to recover damages for personal injuries insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Baxter Smith, P.C., Jericho, N.Y. (Catherine Gibbons Clement, Robert C. Baxter, and Anne W. Malone of counsel), for appellants Gloria Randisi and Steven Basic.
Isserlis Sullivan, Bethpage, N.Y. (Lawrence R. Miles of counsel), for appellants Ronald Fishman and Adam Fishman.
Jay H. Tanenbaum, New York, N.Y. (Laurence Warshaw of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, those branches of the appellants' respective motions which were for summary judgment dismissing the cause of action to recover damages for personal injuries insofar as asserted against them are granted, that cause of action is dismissed insofar as asserted against the appellants, and, upon searching the record, summary judgment is granted to the remaining defendants dismissing the cause of action to recover damages for personal injuries insofar as asserted against them.
The appellants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact that he sustained a serious injury. The plaintiff's treating physician failed to set forth what objective tests, if any, he used in arriving at his conclusion concerning the alleged restriction of motion in the plaintiff's cervical spine (see Slasor v. Elfaiz, 275 A.D.2d 771; Sainte-Aime v. Ho, 274 A.D.2d 569; Grossman v. Wright, 268 A.D.2d 79), and failed to specify the degree of the limitation of motion (see Linares v. Mompoint, 273 A.D.2d 446; Kauderer v. Penta, 261 A.D.2d 365; Smith v. Askew, 264 A.D.2d 834; Lobo v. Singh, 259 A.D.2d 523; DiNunzio v. County of Suffolk, 256 A.D.2d 498; Merisca v. Alford, 243 A.D.2d 613).
Furthermore, the plaintiff failed to demonstrate that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see Licari v. Elliott, 57 N.Y.2d 230; Delpilar v. Browne, 282 A.D.2d 647; Greene v. Miranda, 272 A.D.2d 441; Carpluk v. Freidman, 269 A.D.2d 349).
Inasmuch as the plaintiff failed to demonstrate that he sustained a serious injury, we search the record and grant summary judgment to the remaining defendants dismissing the cause of action to recover damages for personal injuries insofar as asserted against them.
FEUERSTEIN, J.P., KRAUSMAN, LUCIANO, TOWNES and COZIER, JJ., concur.