ERSOP v. VARIANO

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

The defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting the affirmation of an orthopedist and a radiologist ( see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957; Grossman v. Wright, 268 A.D.2d 79, 84; Turchuk v. Town of Wallkill, 255 A.D.2d 576). The orthopedist examined the plaintiff, the plaintiff's medical records, and X-rays of the plaintiff's cervical spine and concluded that the cervical sprain the plaintiff sustained in the accident, which occurred more than four years earlier, had completely resolved. He found that the plaintiff had full range of motion in all directions, no evidence of spasm or atrophy, and no pain on palpation. He further found no indication of cervical radiculopathy, herniated cervical disc, or neurologic deficit. The radiologist examined a magnetic resonance imaging of the plaintiff's cervical spine and concluded that "a probable posterior disc bulge at C6-7" was due to chronic degenerative disc disease, rather than trauma.

The plaintiff's opposition was insufficient to raise a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102(d). At the time of examination by his treating physician on February 5, 2002, the plaintiff had not received treatment for injuries associated with the accident since November 1998. The plaintiff offered no explanation for the more than three-year gap, nor did he describe any treatment he had received in the interim ( see Taylor v. Jerusalem Air, 280 A.D.2d 466; Slasor v. Elfaiz, 275 A.D.2d 771; Grossman v. Wright supra at 84; Smith v. Askew, 264 A.D.2d 834). The plaintiff's treating physician asserted that the plaintiff had a "moderate/marked limitation of motion of his cervical spine." However, he did not identify what objective tests, if any, he performed in arriving at his conclusions concerning alleged restrictions in the plaintiff's motion, nor did he specify the degree of the limitation in motion ( see Kassim v. City of New York, 298 A.D.2d 431; Sainte-Aime v. Ho, 274 A.D.2d 569; see Grossman v. Wright, supra; Reynolds v. Cleary, 274 A.D.2d 509). The plaintiff's physician merely recounted the plaintiff's subjective claim of pain and limitation of motion without verification by objective medical findings ( see Grossman v. Wright, supra at 84; Lanza v. Carlick, 279 A.D.2d 613; Phillips v. Costa, 160 A.D.2d 855).

Furthermore, the plaintiff failed to demonstrate that he sustained a medically-determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180-day period immediately following the accident. The plaintiff failed to submit objective evidence substantiating the existence of a medically-determined injury which caused his extended absence from work ( see Taylor v. Jerusalem Air, supra; Sainte-Aime v. Ho, supra; Jackson v. New York City Tr. Auth., 273 A.D.2d 200; Kauderer v. Penta, 261 A.D.2d 365).

FEUERSTEIN, J.P., KRAUSMAN, LUCIANO, TOWNES and COZIER, JJ., concur.