Burridge v. Gaines

—Appeal from an order of Supreme Court, Niagara County (Lane, J.), entered May 17, 2001, which granted defendants’ motions for summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of John Gaines and Arfredah Gaines (defendants) seeking summary judgment dismissing the complaint in this personal injury action against them on the ground that Christina M. Burridge (plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendants met their initial burden on the motion by demonstrating that plaintiff did not sustain a permanent consequential limitation of use of a body member or a significant limitation of use of a body function or system (see id.; Gaddy v Eyler, 79 NY2d 955, 956-957; [893] see also Licari v Elliott, 57 NY2d 230, 234-235). According to the affirmation of defendants’ examining physician, plaintiff suffered “no loss of use nor limitation of motion of the lumbar spine, nor the left knee, leg, nor arm, nor at the thumbs and wrists.” In response, plaintiffs submitted the affirmations and reports of two of plaintiff’s treating physicians. Apart from the conclusory assertions in the affirmations of plaintiff’s treating physicians, which are insufficient to defeat the motion (see Michaelides v Martone, 186 AD2d 544; Marshall v Albano, 182 AD2d 614), neither treating physician found that plaintiff had sustained any limitation in the range of motion of her spine and legs, as alleged by plaintiff. Rather, one physician noted that the range of motion of plaintiffs spine was “free and pain less [sic],” and the other physician noted that plaintiff had “reasonable range of motion” and “no focal motor deficits in the legs.” Thus, plaintiffs failed to raise a triable issue of fact to defeat the motion (see Licari, 57 NY2d at 237-238). Present— Pine, J.P., Hayes, Hurlbutt, Burns and Lawton, JJ.