Defendants, however, are entitled to dismissal of Bertervide's claim that he sustained a "permanent loss of use," as their submissions establish that the plaintiff did not sustain a "total" loss of use of any body part (Swift v. New York City Transit Authority, 115 A.D.3d 507, 509 [1st Dept. 2014]).

In opposition, Fabian fails to raise a triable issue of fact concerning her permanent loss of use claim. An injury in the permanent loss of use category requires a "total loss of use" (Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]), and the testimonial and medical evidence establish that she did not suffer a total loss of use of any body part (see Swift v New York Tr. Auth., 115 AD3d 507, 509 [1st Dept 2014]; Melo v Grullon, 101 AD3d 452, 453 [1st Dept 2012]).

. See Kang v. Almanzar, 116 A.D.3d 540, 541 (1st Dep't 2014) (surgeon submitted findings that plaintiff suffered “qualitative limitations” in her ability to use her shoulder for two years); Liz v. Munoz, 149 A.D.3d 646, 647 (1st Dep't 2017) (orthopedic surgeon submitted evidence of “measured limitations in range of motion”); Barreras v. Vargas, 151 A.D.3d 620, 621 (1st Dep't 2017) (“measured range-of-motion limitations two years after” accident); Swift v. New York Transit Authority, 115 A.D.3d 507, 508 (1st Dep't 2014) (objective medical evidence of reduced knee function). Such evidence is completely lacking here.

In other contexts, New York courts have considered events separated by much longer time periods than the five days at issue here to be contemporaneous. See, e.g., Swift v. New York Tr. Auth., 115 A.D.3d 507, 981 N.Y.S.2d 706, 709 (2014) ("[Doctor's] report noting that he began treating plaintiff a month after the accident provides sufficient contemporaneous proof of injuries." (citations omitted)); Salman v. Rosario, 87 A.D.3d 482, 928 N.Y.S.2d 531, 533 (2011) ("Plaintiff's objective evidence of injury, four months post-accident, was sufficiently contemporaneous to establish that plaintiff had suffered a serious injury within the meaning of the statute."); see also Nau v. Vulcan Rail & Construction Co., 286 N.Y. 188, 36 N.E.2d 106, 110 (1941) (noting that "[e]ven though [three instruments] had been made at different dates, that fact would not affect the rule" that where the instruments "were executed at substantially the same time[ and] related to the same subject-matter, [they] were contemporaneous writings and must be read together as one").

Memorandum: In this action to recover damages for injuries allegedly sustained in an automobile accident, defendant appeals from an order that denied his motion 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) under the permanent loss of use, significant limitation of use, permanent consequential limitation of use, or 90/180-day categories. We agree with defendant that Supreme Court erred in denying the motion with respect to the permanent loss of use category (see Booth v Carlson, 195 A.D.3d 1594, 1595 [4th Dept 2021]; Swift v New York Tr. Auth., 115 A.D.3d 507, 509 [1st Dept 2014]) and with respect to the permanent consequential limitation of use category insofar as it relates to plaintiff's thoracic spine and bilateral shoulder injuries (see Gamblin v Nam, 200 A.D.3d 1610, 1613 [4th Dept 2021]). We therefore modify the order accordingly.

Memorandum: In this action to recover damages for injuries allegedly sustained in an automobile accident, defendant appeals from an order that, inter alia, denied those parts of her motion for summary judgment that sought to dismiss the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) under the permanent loss of use, significant disfigurement, significant limitation of use, or permanent consequential limitation of use categories. We agree with defendant that Supreme Court erred with respect to the permanent loss of use category (see Swift v New York Tr. Auth., 115 A.D.3d 507, 509 [1st Dept 2014]; Vitez v Shelton, 6 A.D.3d 1180, 1181 [4th Dept 2004]). We therefore modify the order accordingly.

Memorandum: In this action to recover damages for injuries allegedly sustained in an automobile accident, defendant appeals from an order that, inter alia, denied those parts of her motion for summary judgment that sought to dismiss the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) under the permanent loss of use, significant disfigurement, significant limitation of use, or permanent consequential limitation of use categories. We agree with defendant that Supreme Court erred with respect to the permanent loss of use category (see Swift v New York Tr. Auth., 115 AD3d 507, 509 [1st Dept 2014]; Vitez v Shelton, 6 AD3d 1180, 1181 [4th Dept 2004]). We therefore modify the order accordingly.

Although plaintiff did not initially complain to his doctor about his shoulder, he testified that his shoulder was bruised after the accident and then sought treatment within a month when pain developed. Such delay does not require a finding of lack of a causal connection, but rather presents an issue of fact (seeSwift v. New York City Tr. Auth., 115 A.D.3d 507, 981 N.Y.S.2d 706 [1st Dept. 2014] ).Defendants were entitled to dismissal of plaintiff's 90/180 claim based on plaintiff's pleadings and deposition testimony concerning his activities after the accident (seeAnderson v. Pena, 122 A.D.3d 484, 485, 997 N.Y.S.2d 40 [1st Dept. 2014] ).

Enters. Inc., 22 N.Y.3d 905, 907, 976 N.Y.S.2d 1, 998 N.E.2d 801 [2013] ). She claimed that her no-fault benefits ended and she was now on Medicaid, but her current doctors did not accept it (seeSwift v. New York Tr. Auth., 115 A.D.3d 507, 508, 981 N.Y.S.2d 706 [1st Dept. 2014] [gap explained because plaintiff was seeking doctors who accepted Medicaid] ). However, as to her claimed knee injuries, plaintiff failed to submit medical evidence addressing the findings of degeneration in her own medical records and explaining why the knee conditions were causally related to the accident (seeAlvarez at 1044, 993 N.Y.S.2d 1, 993 N.Y.S.2d 1 ).

Defendant met his prima facie burden by submitting the report of a physician who opined that plaintiff Alston's cervical spine sprain and plaintiff Brown's lumbar spine sprain had fully resolved (seeCruz v. Martinez, 106 A.D.3d 482, 483, 965 N.Y.S.2d 94 [1st Dept. 2013] ). The physician opined that, while Alston exhibited limitations in range of motion, the limitations were subjective and unsupported by any objective evidence of injury (seeSwift v. New York Tr. Auth., 115 A.D.3d 507, 981 N.Y.S.2d 706 [1st Dept. 2014] ). Moreover, defendant argued that both plaintiffs' claims of serious injury were belied by their having ceased all treatment about seven years earlier, within three months of the accident, which they were required to explain (seePommells v. Perez, 4 N.Y.3d 566, 572, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).