Beaubrun v. New York City Transit Authority

Order, Supreme Court, New York County (Robert Lippmann, J.), entered June 13, 2003, which granted the motion of defendant New York City Transit Authority and the cross motion of defendants Unimet Ambulette Corp. and Nathaniel Chisolm for summary judgment dismissing the complaint as against them, respectively, affirmed, without costs.

*259After defendants demonstrated their entitlement to summary judgment on the issue of serious injury, plaintiff, injured in a collision with defendant Transit Authority’s bus while riding in defendant Unimet’s vehicle, failed to meet his burden of producing evidence sufficient to raise a triable issue of fact as to whether his injuries met the “serious injury” criteria of Insurance Law § 5102 (d). Plaintiff’s contention that he suffered a permanent serious injury or, alternatively, a nonpermanent injury or impairment, is undermined by an absence in the record of objective medical evidence supporting such injury. There are no affidavits from the physicians who treated him. His chiropractor’s affidavit is defective as largely conclusory, tailored to the statutory criteria more so than objective medical evidence, and as indicating an unexplained SVa-year gap in treatment which, coincidentally, ended shortly after the underlying motion and cross motion were filed (see Ceruti v Abernathy, 285 AD2d 386 [2001]). To the extent that it purports to incorporate and rely on reports containing objective medical evidence, the affidavit fails to specify why any of plaintiff’s few alleged continuing injuries are serious and permanent, i.e., how these injuries manifest in terms of specific, permanent, serious disabilities or limitations. The “whole impairment rating,” which purportedly quantifies plaintiffs injuries, is similarly meaningless here inasmuch as it does not indicate the degree of impairment of the individual injured areas of plaintiffs spine (cf. DiLeo v Blumberg, 250 AD2d 364, 365 [1998] [whole body impairment rating was accompanied by “specific degree to which motion was limited” in “each of 12 range of motion tests”]).

Plaintiff provides no objective medical evidence specifically supporting his alleged Insurance Law § 5102 (d) 90/180 category serious injury. Neither the chiropractor’s affidavit nor plaintiffs evidence generally states any prescribed limitations set by any medical provider on any, let alone “substantially all of the material acts which constitute [plaintiffs] usual and customary daily activities” during such period (Insurance Law § 5102 [d]). In fact, plaintiff’s supplemental verified bill of particulars states that plaintiff was unable to work for only approximately two months after the accident. “Plaintiffs self-serving statements [in his affidavit] standing alone are insufficient to raise a triable issue of fact” on this issue (Nelson v Distant, 308 AD2d 338, 340 [2003] [citations omitted]). Concur—Williams, Friedman and Gonzalez, JJ.