Appellate Division of the Supreme Court of the State of New York, Second Department.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendants contend that the plaintiff Arlene Tipping-Cestari failed, as a matter of law, to establish that she sustained a "serious injury" within the meaning of Insurance Law § 5102 (d). We agree. It is for the court to determine in the first instance whether a prima facie showing of "serious injury" has been made out, and summary judgment should be granted where, as here, the plaintiff Tipping-Cestari has failed to meet her burden (see, Licari v Elliott, 57 N.Y.2d 230; Palmer v Amaker, 141 A.D.2d 622). The medical reports submitted by the plaintiffs in opposition to the motion for summary judgment reveal that the plaintiff Tipping-Cestari sustained a cervical and lumbar sprain, with an unspecified degree of restriction of cervical motion. These reports are insufficient to establish that she suffered either "permanent loss of use" or "significant limitation" of a body organ, member, function, or system (see, Insurance Law § 5102 [d]; Maenza v Letkajornsook, 172 A.D.2d 500; O'Neill v Rogers, 163 A.D.2d 466; Konco v E.T.C. Leasing Corp., 160 A.D.2d 680; Delfino v Davey, 159 A.D.2d 604). Moreover, her continuing subjective complaints of pain cannot suffice to establish serious injury under the statute (see, Scheer v Koubek, 70 N.Y.2d 678; O'Neill v Rogers, supra).