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Brown v. Wagg

280 A.D.2d 891 Court N.Y. App. Div. Decision date 2001-02-07 English

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p. 891
Michael G. Brown, Respondent, v Otto W. Wagg et al., Appellants.
[720 NYS2d 684]

—Order unanimously reversed on the law without costs, motion and cross motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motion and cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendants met their initial burden by submitting the affidavit of their medical expert, who “opined therein that there is no objective evidence that plaintiff! ] sustained a serious injury” (Muratore v Tierney, 229 AD2d 1018 ). Plaintiff failed in opposition to present any objective medical evidence to support his claim of serious injury. Although the office record of plaintiff’s attending physician notes a finding of restricted range of motion of the cervical spine, neither that record nor any physician’s affidavit or medical report shows that such limitation was “objectively measured or quantified” (Forte v Vaccaro, 175 AD2d 153 ; see, Watt v Eastern

p. 892
Investigative Bur., 273 AD2d 226 , 227-228; see also, Lynch v Williams, 265 AD2d 870 , 871). Thus, plaintiff failed to raise an issue of fact whether he sustained either a permanent consequential limitation of use of a body organ or member (see, Barbarulo v Allery, 271 AD2d 897 , 899-900; Stowell v Safee, 251 AD2d 1026 ; see generally, Scheer v Koubek, 70 NY2d 678 , 679) or a medically determined injury or impairment that prevented him from performing substantially all of his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see, Watt v Eastern Investigative Bur., supra, at 228 ; Bennett v Reed, 263 AD2d 800 , 801; Logan v Laidlaw School Tr., 175 AD2d 568 , 568-569; see generally, Scheer v Koubek, supra, at 679 ). (Appeals from Order of Supreme Court, Oswego County, Nicholson, J. — Summary Judgment.) Present — Hayes, J. P., Hurl-butt, Scudder, Kehoe and Lawton, JJ.

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