PANISSE v. JRS TRUCK RENTAL INC (1997)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCabe, J.), entered April 30, 1996, which granted the separate motions of the defendants Howard Ende and Abraham Ende and the defendants Jrs. Truck Rental, Inc., and Walter Youchman, for summary judgment dismissing the complaint and any cross claims insofar as asserted against them, and dismissed the complaint.

ORDERED that the order is affirmed, with one bill of costs.

 The defendants properly relied upon the unsworn reports of the plaintiffs' physicians to establish a prima facie case that the injured plaintiff did not sustain serious injury as defined by Insurance Law § 5102(d) (see, Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692).   Here, one such report stated, inter alia, that the injured plaintiff's neurological examination was normal and that she had full range of motion in her neck, and this sufficed to make a prima facie showing that the plaintiff did not suffer a serious injury (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The burden then shifted to the plaintiffs to come forward with sufficient evidence to overcome the defendants' motion by demonstrating that the injured plaintiff sustained a serious injury (see, Gaddy v. Eyler, supra, at 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

 In the instant case, the court correctly determined that the plaintiffs' evidence was insufficient in this regard.   The physician's affidavit submitted by the plaintiffs failed to quantify the restriction of motion suffered by the injured plaintiff (see, Wilkins v. Cameron, 214 A.D.2d 557, 558, 625 N.Y.S.2d 66;  Stallone v. County of Suffolk, 209 A.D.2d 403, 618 N.Y.S.2d 445;  Iglesias v. Inland Freightways, 209 A.D.2d 479, 480, 619 N.Y.S.2d 59).   Moreover, the physician's conclusory recitation of the words “permanent consequential limitation” and “significant limitation” was clearly tailored to meet the statutory requirements (see, Antorino v. Mordes, 202 A.D.2d 528, 609 N.Y.S.2d 273).

MEMORANDUM BY THE COURT.