Opinion
2012-10-11
Dean PHILLIPS, Plaintiff–Appellant, Adrian Ward, Plaintiff, v. TOLNEP LIMO INC., et al., Defendants–Respondents.
Mitchell Dranow, Sea Cliff, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondents.
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 judgment dismissing plaintiff Dean Phillips' complaint based on the failure to establish a serious injury within 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 to plaintiff's claims of “permanent consequential” and “significant limitation of use” of his lumbar spine (Insurance Law § 5102[d] ). Defendants submitted expert medical reports finding normal ranges of motion, as well as the report of a radiologist who opined that changes shown in an MRI of plaintiff were degenerative.
In opposition, plaintiff failed to raise a triable issue of fact as to his lumbar spine injuries. His physician's measurement of a minor limitation in one plane of range of motion was deficient in raising a triable of fact as to whether plaintiff sustained a serious injury ( see Canelo v. Genolg Tr., Inc., 82 A.D.3d 584, 919 N.Y.S.2d 27 [1st Dept. 2011] ; see also Lattan v. Gretz Tr. Inc., 55 A.D.3d 449, 865 N.Y.S.2d 599 [1st Dept. 2008] ). Such finding does not amount to a serious, or important, limitation of the use within the meaning of Insurance Law § 5102(d) ( see Sone v. Qamar, 68 A.D.3d 566, 889 N.Y.S.2d 845 [1st Dept. 2009] ).
Plaintiff's bill of particulars and deposition testimony refuted his 90/180–day claim, since he alleged that he was confined to home and bed for one week, after which time he returned to work ( see Byong Yol Yi v. Canela, 70 A.D.3d 584, 895 N.Y.S.2d 397 [1st Dept. 201] ).