        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

509
CA 13-01778
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


RONALD GRIFFO, JR., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DANIEL COLBY, CHERIE ANN COLBY, SAMUEL R.
SCIME, KATHLEEN SCIME AND DANIEL C. DEPRIORE,
DEFENDANTS-RESPONDENTS.
(ACTION NO. 1.)
---------------------------------------------
RONALD GRIFFO, JR., PLAINTIFF-APPELLANT,

                    V

SAMUEL R. SCIME, KATHLEEN SCIME AND DANIEL C.
DEPRIORE, DEFENDANTS-RESPONDENTS.
(ACTION NO. 2.)


LAW OFFICE OF WILLIAM MATTAR, P.C., WILLIAMSVILLE (APRIL J. ORLOWSKI
OF COUNSEL), FOR PLAINTIFF-APPELLANT.

MCCABE, COLLINS, MCGEOUGH & FOWLER, LLP, CARLE PLACE (TAMARA M.
HARBOLD OF COUNSEL), FOR DEFENDANTS-RESPONDENTS DANIEL COLBY AND
CHERIE ANN COLBY.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (WILLIAM L. SHERLOCK OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS SAMUEL R. SCIME, KATHLEEN SCIME
AND DANIEL C. DEPRIORE.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered December 31, 2012. The order granted the
motions of defendants for summary judgment and dismissed plaintiff’s
complaints.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced these actions seeking damages
for injuries he allegedly sustained in two motor vehicle accidents.
Plaintiff’s bills of particulars alleged that, as a result of each
accident, he sustained serious injuries under the permanent loss of
use, permanent consequential limitation of use, significant limitation
of use, and 90/180-day categories of Insurance Law § 5102 (d). We
conclude that Supreme Court properly granted defendants’ motion for
summary judgment dismissing the complaint in each action on the ground
                                 -2-                           509
                                                         CA 13-01778

that there was no material issue of fact that plaintiff had sustained
a serious injury.

     Defendants met their respective burdens with regard to the
permanent loss of use, permanent consequential limitation of use, and
significant limitation of use categories by submitting the affirmed
reports of a physician retained jointly by defendants, for both
accidents. The physician, who examined plaintiff and his medical
records, concluded that plaintiff had sustained only sprains and
strains in the accidents, that those injuries had resolved, and that
plaintiff’s limitations in his range of motion were evidenced solely
by subjective complaints of pain (see Scheer v Koubek, 70 NY2d 678,
679; Rabolt v Park, 50 AD3d 995, 995; see also O’Brien v Bainbridge,
89 AD3d 1511, 1512). In opposition, plaintiff failed to raise a
triable issue of fact (see generally Zuckerman v City of New York, 49
NY2d 557, 562). The affidavit of his chiropractor failed to set forth
any objective evidence, including the results of any tests performed,
and merely noted that plaintiff’s limitations in his range of motion
shortly after each accident were accompanied by pain (see Weaver v
Town of Penfield, 68 AD3d 1782, 1784-1785). The chiropractor’s
conclusory recitation of statutory language was insufficient to raise
a triable issue of fact (see Carfi v Forget, 101 AD3d 1616, 1619).
With respect to the 90/180-day category, defendants met their
respective burdens by submitting plaintiff’s deposition testimony,
which established that he was not prevented “from performing
substantially all of the material acts which constituted his usual
daily activities” for at least 90 out of the 180 days following each
accident (Licari v Elliott, 57 NY2d 230, 238).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
