Opinion
2008-1738 Q C.
Decided January 28, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered July 1, 2008, deemed from a judgment of the same court entered August 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 1, 2008 order granting the motion by defendant Rowsevelt Debel and the cross motion by defendants City of New York and Nicole Clemenston for summary judgment, dismissed the complaint.
ORDERED that the judgment is reversed without costs, the order entered July 1, 2008 is vacated and the motion by defendant Rowsevelt Debel and the cross motion by defendants City of New York and Nicole Clemenston are granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not satisfy the threshold requirement of suffering a serious injury under the 90/180-day category.
PRESENT: WESTON, J.P., RIOS and STEINHARDT, JJ.
Plaintiff commenced this action to recover damages for serious injuries allegedly sustained in a motor vehicle accident. Defendant Rowsevelt Debel moved, and defendants City of New York and Nicole Clemenston cross-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 Civil Court granted the motion and cross motion, and this appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to be taken ( see CPLR 5501 [c]).
Defendants made a prima facie showing that plaintiff did not sustain a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) as a result of the accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). However, contrary to the determination of the Civil Court, the affirmations of plaintiff's medical experts were sufficient to raise a triable issue of fact with respect thereto. Plaintiff's treating neurologist set forth numerical values for plaintiff's ranges of motion, compared them to normal ranges and reported limitations in plaintiff's ranges of motion. The neurologist cited to objective testing in the form of EMG studies and MRI findings of disc bulges. Furthermore, plaintiff's treating neurologist showed that, notwithstanding defendants' assertions, there was no gap in plaintiff's treatment. In her affirmation, the neurologist set forth the dates of her physical examinations of plaintiff, May 11, 2006, September 21, 2006, November 22, 2006, January 17, 2007, March 14, 2007 and May 11, 2007, noting that plaintiff initially received physical therapy two times each week, and stating that, after the November 22, 2006 examination, plaintiff had received physical therapy three times per week. In addition, plaintiff stated in his affidavit in opposition to defendants' motion and cross motion that he continued to receive physical therapy treatments ( see Pommells v Perez, 4 NY3d 566). We note that defendants' medical experts acknowledged in their affirmed reports that plaintiff underwent physical therapy at least twice each week. Consequently, plaintiff demonstrated the existence of a material issue of fact with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury.
With regard to the 90/180-day category of serious injury, defendants submitted, among other things, the certified transcript of plaintiff's deposition, which contained plaintiff's admission that he was not confined to home or bed and did not miss any time from school immediately following the accident. Plaintiff's admission constituted prima facie evidence that plaintiff's alleged injuries did not prevent him from performing substantially all of the material acts which constitute 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 Berson v Rosada Cab Corp. , 62 AD3d 636 ; Morris v Edmond , 48 AD3d 432 ). In opposition, plaintiff's affidavit and medical submissions failed to raise a triable issue of fact with respect to the 90/180-day category ( see Sorto v Morales , 55 AD3d 718 ; Casas v Montero , 48 AD3d 728 ).
Accordingly, the judgment is reversed, the order is vacated and the motion by defendant Rowsevelt Debel and the cross motion by defendants City of New York and Nicole Clemenston for summary judgment are granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not satisfy the threshold requirement of suffering a serious injury under the 90/180-day category.
Weston, J.P., Rios and Steinhardt, JJ., concur.