ROBINSON III v. POLASKY

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Supreme Court, Appellate Division, Fourth Department, New York.

Lester J. ROBINSON, III, Plaintiff-Appellant, v. Jeffrey William POLASKY and Bridgette C. Kirkman, Defendants-Respondents.

Decided: September 22, 2006

PRESENT:  PIGOTT, JR., P.J., KEHOE, MARTOCHE, SMITH, AND PINE, JJ. Garvey & Garvey, Buffalo (Matthew J. Garvey of Counsel), for Plaintiff-Appellant. Burgio, Kita & Curvin, Buffalo (James P. Burgio of Counsel), for Defendants-Respondents.

 In an action to recover damages for personal injuries arising from an automobile accident, plaintiff appeals from an order granting defendants' motion for summary judgment dismissing the complaint.   The complaint, as amplified by the bill of particulars, sought recovery under three categories of serious injury as set forth in Insurance Law § 5102(d), i. e., the permanent consequential limitation of use, the significant limitation of use and the 90/180 categories.   With respect to the 90/180 category, defendants met their initial burden on the motion by submitting excerpts of plaintiff's deposition testimony wherein plaintiff admitted that he did not miss any full days of work after the accident.   In response, plaintiff failed to raise an issue of fact whether he was unable to perform substantially all of the material acts that constituted his usual and customary daily activities (see Burns v. McCabe, 17 A.D.3d 1111, 794 N.Y.S.2d 267;  Parkhill v. Cleary, 305 A.D.2d 1088, 1090, 759 N.Y.S.2d 262;  see also Simpson v. Feyrer, 27 A.D.3d 881, 811 N.Y.S.2d 788).

 Contrary to the contention of plaintiff, defendants met their initial burden on the motion with respect to the permanent consequential limitation of use and significant limitation of use threshold categories by submitting competent medical evidence establishing as a matter of law that plaintiff did not sustain a serious injury under either of those categories (see Sarkis v. Gandy, 15 A.D.3d 942, 789 N.Y.S.2d 578;  Hoffmann v. Stechenfinger, 4 A.D.3d 778, 779, 772 N.Y.S.2d 432).   In opposition, plaintiff failed to raise a triable issue of fact (see Winslow v. Callaghan, 306 A.D.2d 853, 854, 761 N.Y.S.2d 891).   We reject the contention of plaintiff that the affidavit of a chiropractor, stating that plaintiff sustained “lineal annular tearing” of two discs, is sufficient to raise a triable issue of fact.   That affidavit did not constitute “ ‘objective evidence of the extent or degree of the alleged physical limitations resulting from th[at] disc injury’ ” (Owen v. Rapid Disposal Serv., 291 A.D.2d 782, 782-783, 737 N.Y.S.2d 453), inasmuch as it failed to provide a numeric percentage of plaintiff's loss of range of motion or a qualitative assessment of plaintiff's condition (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197).

We have considered plaintiff's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: