Opinion
2007-1263 Q C.
Decided September 29, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 18, 2007. The order granted defendants' motion for summary judgment.
Order modified by providing that defendants' motion for summary judgment is granted to the extent of finding for all purposes in this action ( see CPLR 3212 [g]) that plaintiff did not sustain a serious injury for all categories of Insurance Law § 5102 (d), with the exception of the 90/180-day category; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
In this action, plaintiff seeks to recover for serious injuries allegedly sustained in a motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The court granted defendants' motion, and the instant appeal by plaintiff ensued.
A defendant makes a prima facie showing by submitting competent, admissible proof which objectively demonstrates that the plaintiff did not suffer a serious injury as a result of the accident ( see e.g. Casas v Montero, 48 AD3d 728; Kearse v New York City Tr. Auth., 16 AD3d 45). In the present case, with the exception of the 90/180-day category, defendants made a prima facie showing of entitlement to judgment by submitting the affirmed medical reports of their experts and plaintiff's verified bill of particulars ( see Gordover v Balandina, 41 AD3d 537). In opposition, plaintiff failed to raise a triable issue of fact since he did not proffer a medical report in admissible form to demonstrate that limitations in his ranges of motion were contemporaneous with the accident ( see Earl v Chapple, 37 AD3d 520). As a result, the court below properly determined that defendants demonstrated that plaintiff did not suffer a serious injury, with the exception of the 90/180-day category.
However, defendants' motion papers did not adequately address plaintiff's claim in his verified bill of particulars that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (Insurance Law § 5102 [d]; see Jensen v Nicmanda Trucking, Inc., 47 AD3d 769). Although defendants' physicians, who examined plaintiff four years after the accident, opined that plaintiff was not permanently disabled when they examined him, both doctors were silent as to the possibility that plaintiff sustained a serious injury under the 90/180-day category. Accordingly, defendants failed to establish their prima facie burden as to the 90/180-day category ( see Edwards v Sultan Transp., Inc., 47 AD3d 872; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, supra; Coburn v Samuel, 44 AD3d 698; Jocelyn v Singh Airport Serv., 35 AD3d 668), and defendants' motion for summary judgment is denied with respect thereto.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.