In order to show prima facie “significant limitation” a plaintiff must prove “significant limitation in both degree and duration.” Gualtieri v. Farina, 283 F.Supp.2d 917, 925 (S.D.N.Y.2003) (Conner, J.) (granting summary judgment where plaintiff proved degree, but not duration of the significant limitation) (citing Petrone v. Thornton, 166 A.D.2d 513, 561 N.Y.S.2d 49, 50 (1990)); see also Jones v. United States, 408 F.Supp.2d 107, 120 (E.D.N.Y.2006) (Azrack, J.) (granting summary judgment where “plaintiff's neck and back functions were both slight and short-term.”) (emphasis added). “[T]he word ‘significant’ ... should be construed to mean something more than a minor limitation of use ... [A] minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute.”

Moreover, that evidence related to Molina's injury in the days immediately following the accident. Without any objective evidence that these alleged limitations lasted much longer, no reasonable juror could conclude that Molina's injuries were permanent, significant, or curtailed her customary activities for more than 90 days. See, e.g., Kim v. Kim, 697 N.Y.S.2d 676, 677 (App.Div.2d Dep't 1999) (holding that evidence of alleged limitations obtained soon after accident was, without more, insufficient to survive summary judgment); see also Petrone v. Thornton, 561 N.Y.S.2d 49, 50 (App. Div 2d Dep't 1990) (holding that "duration" of limitation is a factor in determining whether limitation is "significant"). Finally, Molina's complaint alleges that she suffered economic losses, the first $50,000 of which are unrecoverable under New York law.See N.Y. Ins. Law § 5104(a) (barring recovery for "basic economic loss"); Id. § 5102(a) (defining "basic economic loss" as up to $50,000 in certain losses).

In order to make out a prima facie case for a significant limitation, plaintiff must show a significant limitation in both degree and duration. Khouzam v. Zalesky, No. 93 Civ. 6360, 1996 WL 79882, at *7 (S.D.N.Y. Feb. 26, 1996) (citing Petrone v. Thornton, 561 N.Y.S.2d 49,50 (N.Y.App.Div. 1990). The plaintiff has shown medical evidence of a quantifiable limitation in her range of motion in September of 2000.

However, Bates, in fact supports the exact contrary position to that of the plaintiff. In Bates, the appellate court affirmed a lower court's denial of summary judgment on the issue of whether the plaintiff had suffered a serious injury. On facts similar to this case, the appellate court stated that "the [trial court] properly concluded that there were issues of fact as to whether the plaintiff had suffered a `serious injury' within the meaning of the Insurance Law (Insurance Law § 5102[d]; see, Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130 [(198; Petrone v. Thornton, 166 A.D.2d 513, 561 N.Y.S.2d 49 [(2d Dept. 1990)]; Morsellino v. Frankel, 161 A.D.2d 748, 556 N.Y.S.2d 103 [(2d Dept. 1990)]; Lazarre v. Kopczynski, 160 A.D.2d 772, 553 N.Y.S.2d 488 [(2d Dept. 1990)]; Conde v. Eric Serv. Corp., 158 A.D.2d 651, 552 N.Y.S.2d 121 [(2d Dept. 1990)]; Healea v. Andriani, 158 A.D.2d 587, 551 N.Y.S.2d 554 [(2d Dept. 1990)]; Partlow v. Meehan, 155 A.D.2d 647, 548 N.Y.S.2d 239 [(2d Dept. 1989)]; Robbie v. Ledeoux, 146 A.D.2d 764, 537 N.Y.S.2d 72 [(2d Dept. 1989)]; Hughes v. Poulin, 144 A.D.2d 846, 534 N.Y.S.2d 734 [(3d Dept. 1988)]; Swenning v. Wankel, 140 A.D.2d 428, 528 N.Y.S.2d 130 [(2d Dept. 1988)];" Bates, 566 N.Y.S.2d at 660. Given Bates, the weight of authority on which it rests, and the factual similarity with the instant case, the Court finds that there is a question of fact as to the existence of a serious injury. Accordingly, the Court denies plaintiff's cross-motion.

The defendants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Chery v Jones, 62 AD3d 742; Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a medically-determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for at least 90 of the 180 days following the subject accident or whether she sustained a serious injury under the permanent consequential limitation and/or significant limitation of use categories ( see Insurance Law § 5102 [d]; Taylor v Flaherty, 65 AD3d 1328; Petrone v Thornton, 166 AD2d 513; Ottavio v Moore, 141 AD2d 806). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

The defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The affirmed medical reports, which were based on independent medical examinations performed by an osteopath and a physician, failed to demonstrate that the plaintiff did not sustain a significant limitation of motion in her neck and lumbar spine as a result of the subject accident (see Mauro v. Mearsheimer, 207 A.D.2d 872; Petrone v. Thornton, 166 A.D.2d 513; Partlow v. Meehan, 155 A.D.2d 647). Furthermore, the affirmation and supporting medical reports of the plaintiff's treating physiatrist submitted in opposition to the motion were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a "permanent consequential" or a "significant limitation" of motion in her neck (Insurance Law § 5102[d]; see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Castellon v. Ortez, 297 A.D.2d 699). ALTMAN, J.P., S. MILLER, McGINITY, SCHMIDT and RIVERA, JJ., concur.

The plaintiff gave a reasonable excuse for his delay in answering the motion for summary judgment ( see, Matter of Kaufman v. Board of Educ. of City School Dist. of City of N.Y., 210 A.D.2d 226). Furthermore, the plaintiff demonstrated that he has a meritorious cause of action ( see, Abedin v. Tynika Motors, 279 A.D.2d 595; Martin v. JL Distribs., 274 A.D.2d 420; Moreno v. Delcid, 262 A.D.2d 464; Petrone v. Thornton, 166 A.D.2d 513). SANTUCCI, J.P., ALTMAN, FLORIO, H. MILLER and COZIER, JJ., concur.

There are issues of fact as to, inter alia, credibility, which preclude the granting of summary judgment ( see, Doo Won Choi v B.H.N.V. Realty Corp., 240 A.D.2d 619; Petrone v. Thorton, 166 A.D.2d 513; Mortimer v. Lynch, 119 A.D.2d 658; cf., Matter of Aetna Cas. Sur. Co. v. Gutstein, 80 N.Y.2d 773). Further, additional discovery with respect to matters solely within the control of the appellants is warranted ( see, CPLR 3212 [f]; Classic Moments Co. v. Akata, 176 A.D.2d 567).

In his affidavit, the plaintiff's treating physician indicated that, based on the physical examination he performed on the plaintiff more than three years after the accident, he found that the movement of the plaintiff's cervical spine was restricted by more than 20 degrees and that the movement of his lumbar spine was restricted by more than 20 per cent. The affidavit raised an issue of fact as to whether the plaintiff suffered a serious injury as defined by Insurance Law § 5102 (d) (cf., Beckett v. Conte, 176 A.D.2d 774; see, Petrone v. Thornton, 166 A.D.2d 513; Phillips v. Costa, 160 A.D.2d 855). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.

This medical evidence raised a triable issue of fact as to whether Ms. Fasce had suffered a "`significant limitation of use of a body function or system'" (Beckett v. Conte, 176 A.D.2d 774) and thus as to whether she had sustained a serious injury as defined by Insurance Law § 5102 (d). However, the affirmation prepared by Dr. Darka H. Genza, a chiropractor, which the plaintiff in Action No. 2, Greg Alper, submitted in opposition to the motion, failed to provide objective evidence of the degree or extent of the alleged "significant limitation" and thus was insufficient to defeat the motion for summary judgment (see, Beckett v. Conte, supra; Petrone v. Thornton, 166 A.D.2d 513; Phillips v. Costa, 160 A.D.2d 855). Sullivan, J.P., Copertino, Santucci and Goldstein, JJ., concur.