LEE v. FISCHER (1997)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Milano, J.), dated October 31, 1996, which denied their motion for summary judgment dismissing the complaint.

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

The plaintiffs failed to raise a triable issue of fact as to whether the injuries suffered by the plaintiff Jennifer Lee prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see, Letellier v. Walker, 222 A.D.2d 658, 635 N.Y.S.2d 682).   The plaintiffs admitted that Jennifer Lee missed only several days of school as a result of the accident.   In addition, the affidavit prepared by Jennifer Lee's treating osteopath, which was submitted in opposition to the motion, failed to specify the nature of her exact limitation and provide objective evidence of the extent or degree of the limitation and its duration (see, Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102).

We conclude that the plaintiffs have failed to establish that Jennifer Lee suffered a permanent consequential limitation of a body organ or member (see, McLiverty v. Urban, 131 A.D.2d 449, 516 N.Y.S.2d 235).

MEMORANDUM BY THE COURT.