Opinion
2012-08-28
Alejandra ARENAS, Plaintiff–Respondent, v. Felix GUAMAN, et al., Defendants–Appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellants. Ephrem J. Wertenteil, New York, for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellants. Ephrem J. Wertenteil, New York, for respondent.
MAZZARELLI, J.P., FRIEDMAN, ACOSTA, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 16, 2011, which denied defendants' motion for summary judgment dismissing the complaint alleging a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to grant the motion as to plaintiff's 90/180–day claim, and otherwise affirmed, without costs.
Assuming that, with respect to plaintiff's claims of significant limitation or permanent consequential limitation of use of her right shoulder and cervical and lumbar spine, defendants made a prima facie showing of entitlement to judgment as a matter of law in support of their motion, plaintiff submitted sufficient medical evidence to raise triable issues of fact as to the severity of her injuries and as to the injuries' causal connection with the accident.
Defendants met their burden as to the 90/180–day claim by relying on plaintiff's testimony that she was confined to bed for only “a month or two” and was unable to perform only a few activities ( see Williams v. Baldor Specialty Foods, Inc., 70 A.D.3d 522, 522–523, 895 N.Y.S.2d 394 [2010];see also Insurance Law § 5102[d] ). Her physician's findings with respect to her restrictions do not raise a triable issue of fact, since they are based on plaintiff's subjective complaints of pain ( see Browne v. Covington, 82 A.D.3d 406, 407, 918 N.Y.S.2d 36 [2011];see also Below v. Randall, 240 A.D.2d 939, 940, 658 N.Y.S.2d 767 [1997] ).