WELLS v. SECKA (2004)

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 7, 2004, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No issues of fact as to serious injury are raised by the report of plaintiff's treating physician (see Insurance Law § 5102[d];  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).   Purporting to describe the seriousness of plaintiff's injuries shortly after the accident, the report merely indicates the numeric percentages of various ranges of motion in plaintiff's spine and shoulder without any contrasting references to what would be considered the normal ranges of motion.   Thus, the report fails to show a “loss of range of motion” (Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] [emphasis added] ).   Nor does it provide any other “objective basis [that] compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system” (id. [emphasis added] ).   In addition, plaintiff's physician fails to address the teenage plaintiff's apparent recovery during the almost two years that elapsed between his last examination of her and the examinations conducted by the defense experts (see Medina-Santiago v. Nojovits, 5 A.D.3d 253, 773 N.Y.S.2d 294 [2004] ).