Opinion
2007-96 Q C.
Decided May 27, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered July 27, 2006, deemed from a judgment of said court entered January 10, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 27, 2006 order granting defendant's motion for summary judgment on the threshold category of serious injury under Insurance Law § 5102 (d), dismissed the complaint.
Judgment modified by providing that the complaint is dismissed only insofar as asserted by plaintiff Elizabeth Ramirez, so much of the order entered July 27, 2006 as granted defendant's motion for summary judgment dismissing the complaint insofar as asserted by plaintiff Janai Ramirez is vacated, and defendant's motion for summary judgment as to plaintiff Janai Ramirez is denied; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
In this action, plaintiffs Janai Ramirez and Elizabeth Ramirez sought to recover for serious injuries allegedly sustained in a motor vehicle accident on May 30, 2003. Defendant moved for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Defendant failed to demonstrate his entitlement to judgment as a matter of law with respect to plaintiff Janai Ramirez, since defendant did not establish that Mr. Ramirez did not sustain a serious injury ( see Insurance Law § 5102 [d]). The affirmed medical report of defendant's expert, who examined Mr. Ramirez more than two years after the accident, identified a loss of motion in the cervical spine ( see Joseph v Hampton , 48 AD3d 638 ; Joissaint v Starrett-1 Inc. , 46 AD3d 622 ). Since defendant failed to meet his initial burden as to Mr. Ramirez, it is unnecessary to consider whether plaintiffs' papers, submitted in opposition, were sufficient to raise a triable issue of fact as to this plaintiff ( see Spektor v Dichy , 34 AD3d 557 ; Coscia v 938 Trading Corp., 283 AD2d 538). Accordingly, so much of the order as granted defendant's motion as to Janai Ramirez is vacated and the complaint as to this plaintiff is reinstated.
With regard to Elizabeth Ramirez, defendant established, through competent expert evidence, that she had a full range of motion of her cervical and lumbar spine. Defendant also made a prima facie showing that Ms. Ramirez's testimonial admissions undermined her claim that her injuries prevented her from performing substantially all of the material acts constituting her usual and customary daily activities for at least 90 days during the first 180 days following the accident ( see Hasner v Budnik, 35 AD3d 355). In opposition, Ms. Ramirez failed to raise a triable issue of fact as to whether she sustained a serious injury ( see Gaddy v Eyler, 79 NY2d 955). Her own orthopedist and physiatrist determined that she had a full range of motion ( see Scott v La Pointe, 13 Misc 3d 135[A], 2006 NY Slip Op 52036[U] [App Term, 2d 11th Jud Dists 2006]). She additionally failed to proffer competent medical evidence to support her claim under the 90/180 day category of serious injury ( see Joseph v Layne , 24 AD3d 516 ). Thus, she failed to meet her burden. Accordingly, the court below properly granted defendant's motion as to Elizabeth Ramirez.
Pesce, P.J., Golia and Steinhardt, JJ., concur.