BY ELIZABETH v. Derek Dunston, et al., Defendants. (2018)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered November 16, 2016, which granted defendants' motions for summary judgment dismissing the complaint based on infant plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law by submitting evidence showing that infant plaintiff did not sustain a serious injury to her lumbar spine.  Defendants offered the affirmations of an orthopedic surgeon and neurologists, who found normal ranges of motion and normal test results.  Furthermore, their radiologist found that a CT scan showed only bulges of no significance and degenerative in nature.

In opposition, infant plaintiff offered objective evidence of injury and her initial treating physician opined that the injury was causally related to the accident, particularly given the absence of prior symptoms (see Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 915 N.Y.S.2d 529 [1st Dept. 2011] ).  However, upon recent examination, infant plaintiff was found only to have a minor limitation in one plane of range of motion, which was insufficient to raise a triable of fact as to whether she sustained a serious injury under Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992];  Moore v. Almanzar, 103 A.D.3d 415, 959 N.Y.S.2d 180 [1st Dept. 2013];  Eisenberg v. Guzman, 101 A.D.3d 505, 956 N.Y.S.2d 21 [1st Dept. 2012] ).