IFRACH v. NEIMAN

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. The defendants established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Gaddy v. Eyler, 79 N.Y.2d 955). In opposition, the plaintiff failed to submit any medical proof that was contemporaneous with the accident showing any initial range of motion restrictions in his spine (see Pajda v. Pedone, 303 A.D.2d 729 [2d Dept, Mar. 31, 2003]; Lanza v. Carlick, 279 A.D.2d 613, 614; Passarelle v. Burger, 278 A.D.2d 294). Furthermore, the plaintiff's expert failed to indicate his awareness that the plaintiff was suffering from degenerative spondyloarthropathy, and therefore, his finding that the plaintiff's current restrictions of motion in his spine were causally related to the subject accident was mere speculation (see Ginty v. MacNamara, 300 A.D.2d 624; Narducci v. McRae, 298 A.D.2d 443; Kallicharan v. Sooknanan, 282 A.D.2d 573, 574). Since the plaintiff did not allege in his complaint or bill of particulars any injuries relating to his right shoulder and did not move for leave to amend the bill of particulars, the evidence pertaining to his right shoulder is not considered (see Seymour v. Roe, 301 A.D.2d 991, 992 n 2).

SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.