McLeod v. Dawes

—Order unanimously affirmed, with costs. Memorandum: Special Term properly denied defendant’s motion for summary judgment seeking a dismissal of the complaint on the ground that plaintiff had not suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). Defendant has not met his burden on this motion of showing that plaintiff has no cause of action because he did not suffer a serious injury. Although the evidentiary material submitted in support of the motion, particularly the affidavit of the physician who examined plaintiff on behalf of defendant, indicates that plaintiff did not suffer a permanent loss of use of a body organ, member, function or system, or a significant limitation of use of a body function or system, that material fails to indicate that plaintiff did not suffer a medically determined injury or impairment of a nonpermanent nature which prevented plaintiff from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. (Appeal from order of Supreme Court, Oneida County, Tenney, J.—dismiss complaint.) Present—Callahan, J. P., Doerr, Boomer, Green and Lawton, JJ.