COLLAZO v. JUN YONG KIM (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Golia, J.), dated December 22, 2000, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant demonstrated, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Thus, it was incumbent upon the plaintiff to come forward with sufficient evidence to raise a triable issue of fact.   In opposition to the defendant's motion for summary judgment dismissing the complaint, the plaintiff submitted his physician's affirmation which indicated he had sustained bulging cervical discs.   However, the affirmation did not provide any objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injuries and their duration (see, Greene v. Miranda, 272 A.D.2d 441, 708 N.Y.S.2d 310;  Grossman v. Wright, 268 A.D.2d 79, 84, 707 N.Y.S.2d 233;  Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681).

Moreover, the plaintiff failed to establish that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts constituting his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see, Krakofsky v. Fox Rizzi, 273 A.D.2d 277, 709 N.Y.S.2d 856;  Estrella v. Marano, 255 A.D.2d 358, 679 N.Y.S.2d 678;  Ryan v. Xuda, 243 A.D.2d 457, 663 N.Y.S.2d 220).