Opinion
May 30, 2000
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered December 30, 1998, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Before: Thompson, J.P., S. Miller, Krausman, Florio and Schmidt, JJ.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
After the defendant established his entitlement to judgment as a matter of law by submitting proof in admissible form that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), the burden shifted to the plaintiff to demonstrate the existence of a triable issue of fact ( see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957). Although the affirmation of the plaintiff's examining physician purported to quantify certain alleged restrictions in the plaintiff's range of motion of her cervical spine, it failed to establish that any objective tests were performed to support this determination ( see, Grossman v. Wright, 268 A.D.2d 79; Kauderer v. Penta, 261 A.D.2d 365; Stowe v. Simmons, 253 A.D.2d 422; Merisca v. Alford, 243 A.D.2d 613; Gill v. O.N.S. Trucking, 239 A.D.2d 463). Furthermore, the plaintiff's evidence failed to demonstrate that she was unable to perform her usual and customary activities for at least 90 out of the 180 days immediately following the accident ( see, Andrews v. Nachman, 258 A.D.2d 607; Shames v. Murtha, 204 A.D.2d 841).