Opinion
570443/05.
Decided January 10, 2006.
Plaintiffs, as limited by their brief, appeal from that portion of an order of the Civil Court, Bronx County (Julia I. Rodriguez, J.), entered February 17, 2005, which granted defendants' motion and cross-motion for summary judgment dismissing their claim under the 90/180 day category of Insurance Law § 5102(d).
Order (Julia I. Rodriguez, J.), entered February 17, 2005, reversed, with $10 costs, defendants' motion and cross-motion for summary judgment denied, and the complaint reinstated.
PRESENT: SUAREZ, P.J., DAVIS, SCHOENFELD, JJ.
Defendants failed to make a prima facie case showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102[d]. The medical affirmations submitted by defendants cannot be considered as probative on the issue of whether plaintiff suffered a medically determined injury that prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident because the doctors' examinations were conducted more than one year after the accident ( see Webb v. Johnson, 13 AD3d 54).
Even assuming defendants did meet their initial burden, the affirmation of plaintiff's treating doctor, opining that the trauma from the vehicular accident exacerbated a previous minor condition of plaintiff's spine and that plaintiff was "totally disabled" from working for nearly one year and confined to "complete rest at home," together with other medical evidence and plaintiff's own affidavit, raised an issue of fact as to whether he sustained a serious injury under the 90/180 day category ( see Woods v. Tomayo, 5 AD3d 309; Manrique v. Warshaw Woolen Assocs., 297 AD2d 519).
This constitutes the decision and order of the court.