DAVIS v. NEW YORK CITY TRANSIT AUTHORITY (1998)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Golia, J.), dated February 5, 1997, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed.

 In support of its motion for summary judgment, the defendant submitted a report from the plaintiff's treating physician stating that the plaintiff sustained a sprain to the left shoulder and lumbosacral spine with an unspecified degree of restriction of motion in the left shoulder and lumbosacral spine.   The defendant therefore demonstrated prima facie entitlement to summary judgment (see, Licari v. Elliott, 57 N.Y.2d 230, 239, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Stallone v. County of Suffolk, 209 A.D.2d 403, 618 N.Y.S.2d 445;  Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692;  Forte v. Vaccaro, 175 A.D.2d 153, 572 N.Y.S.2d 41).   The plaintiff failed to submit evidentiary proof in admissible form demonstrating the existence of a triable issue of fact with respect to a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” (see, Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Fernandez v. Shields, 223 A.D.2d 666, 637 N.Y.S.2d 185;  Looney v. Epervary, 194 A.D.2d 591, 599 N.Y.S.2d 989).

 Furthermore, the plaintiff's assertion that he could not perform his daily activities after the accident did not establish that he had sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially 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, Yagliyan v. Yang, 241 A.D.2d 518, 663 N.Y.S.2d 991;  Crawford v. Simmons, 239 A.D.2d 312, 657 N.Y.S.2d 993; Cullum v. Washington, 227 A.D.2d 370, 642 N.Y.S.2d 86).

MEMORANDUM BY THE COURT.