Insurance Law §5102(d) defines serious injury as: “A personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
“A defendant can establish that the plaintiff’s injuries are not serious within the meaning of Insurance Law§5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff’s claim.” “With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant’s submissions by demonstrating a triable issue of fact that a serious medical was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury.”
In support of the instant motion, defendant submitted the affirmed report of defendant’s examining orthopedic surgeon. He examined the claimant on February 9, 2011, and conducted range of motion testing of his cervical and lumbar spine, right hip and right knee. He compared his finding to what was normal and concluded that plaintiff had normal range of motion in all areas, had no disability and had resolved soft tissue injuries. His examination was conducted over four years after the accident of December 19, 2006 and was silent on the plaintiff’s medical condition during the six month period following the accident. Plaintiff’s verified bill of particulars dated April 7, 2010, however, admits in paragraph six and seven, that he was confined to bed and to home for approximately three weeks and that he lost one week of work due to the accident.