Phillips v Tolnep Limo Inc.
2012 NY Slip Op 06849 [99 AD3d 534]
October 11, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 28, 2012


Dean Phillips, Appellant, et al., Plaintiff,
v
Tolnep Limo Inc. et al., Respondents.

[*1] Mitchell Dranow, Sea Cliff, for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about May 18, 2011, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing plaintiff Dean Phillips' complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants made a prima facie showing of entitlement to judgment as a matter of law as to plaintiff's claims of "permanent consequential" and "significant limitation of use" of his lumbar spine (Insurance Law § 5102 [d]). Defendants submitted expert medical reports finding normal ranges of motion, as well as the report of a radiologist who opined that changes shown in an MRI of plaintiff were degenerative.

In opposition, plaintiff failed to raise a triable issue of fact as to his lumbar spine injuries. His physician's measurement of a minor limitation in one plane of range of motion was deficient in raising a triable of fact as to whether plaintiff sustained a serious injury (see Canelo v Genolg Tr., Inc., 82 AD3d 584 [1st Dept 2011]; see also Lattan v Gretz Tr. Inc., 55 AD3d 449 [1st Dept 2008]). Such finding does not amount to a serious, or important, limitation of the use within the meaning of Insurance Law § 5102 (d) (see Sone v Qamar, 68 AD3d 566 [1st Dept 2009]).

Plaintiff's bill of particulars and deposition testimony refuted his 90/180-day claim, since [*2]he alleged that he was confined to home and bed for one week, after which time he returned to work (see Byong Yol Yi v Canela, 70 AD3d 584 [1st Dept 2010]). Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.