McDougal v. Wytak

—In an action to recover damages for personal injuries, the defendants Clemson Jeans and James Moore appeal from an order of the Supreme Court, Queens County (Milano, J.), dated March 28, 1996, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action is severed as to the remaining defendant.

The medical evidence submitted by the appellants in support of their motion, including the report prepared by the plaintiff”s treating physician, Dr. Andrew D. Brown, made out a prima *322facie case that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d). The only competent evidence submitted by the plaintiff in opposition to the motion was an affirmation of Dr. Philip G. Taylor, which failed to cite any objective tests performed on the plaintiff which led him to conclude that she sustained a significant functional impairment of her lower back (see, Giannakis v Paschilidou, 212 AD2d 502). Furthermore, Dr. Taylor failed to indicate that the claimed limitation of use of the plaintiff’s lumbar spine was anything other than minor (see, Licari v Elliott, 57 NY2d 230). Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.