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

239
CA 13-00999
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


VALERIE HEATTER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL E. DMOWSKI, DEFENDANT-APPELLANT.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (APRIL J. ORLOWSKI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered March 5, 2013 in a personal injury action. The
order denied the motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle she was driving was
struck by a vehicle operated by defendant. According to plaintiff,
she sustained a serious injury under four categories set forth in
Insurance Law § 5102 (d), i.e., permanent loss of use, permanent
consequential limitation of use, significant limitation of use and the
90/180-day category. Defendant moved for summary judgment dismissing
the complaint on the ground that plaintiff did not sustain a serious
injury under any of those categories, and Supreme Court denied the
motion. We reverse. Defendant met his initial burden of establishing
that plaintiff did not sustain a serious injury under those four
categories by submitting an affirmed examining physician’s report
stating that, although plaintiff had sustained a cervical strain that
had resolved within weeks of the accident, the post-accident MRI films
of the cervical spine were unchanged from the prior cervical MRI films
taken five years earlier and revealed no objective evidence of a
recent traumatic or causally related injury (see Womack v Wilhelm, 96
AD3d 1308, 1309; Fuentes v Sanchez, 91 AD3d 418, 419; Gentilella v
Board of Educ. of Wantagh Union Free Sch. Dist., 60 AD3d 629, 629-
630). We note in particular with respect to the 90/180-day category
that plaintiff failed to submit the requisite objective evidence of “a
medically determined injury or impairment of a non-permanent nature”
(§ 5102 [d]), and failed to establish that the alleged limitations in
plaintiff’s daily activities resulted from injuries sustained in the
                                 -2-                          239
                                                        CA 13-00999

accident (see Dann v Yeh, 55 AD3d 1439, 1441; Calucci v Baker, 299
AD2d 897, 898).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
