Opinion
2008-1633 Q C.
Decided October 6, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 21, 2008, deemed from a judgment of the same court entered September 2, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 21, 2008 order granting defendants' motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is reversed without costs, the order entered July 21, 2008 is vacated and defendants' motion for summary judgment is denied.
PRESENT: GOLIA, J.P., PESCE and RIOS, JJ.
Plaintiff commenced this action to recover for personal 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 Civil Court granted defendants' motion for summary judgment, and the instant appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered, from which we deem the appeal to be taken ( see CPLR 5501 [c]).
The Civil Court erred in granting the branch of defendants' motion for summary judgment seeking to dismiss so much of the complaint as is predicated on allegations that plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident ( see Insurance Law § 5102 [d]). In their motion papers, defendants failed to address the allegations set forth in plaintiff's verified and supplemental verified bill of particulars and in her deposition testimony relative to this category of serious injury for the relevant period of time following the accident ( see Breland v Karnack Corp., 50 AD3d 613; Torres v Performance Auto. Group, Inc., 36 AD3d 894). Accordingly, defendants failed to meet their prima facie burden with respect to the 90/180 day category of serious injury.
While 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 serious injury ( see Insurance Law § 5102 [d]) and shifted the burden to plaintiff to raise a triable issue of fact with regard to these two categories ( see Gaddy v Eyler, 79 NY2d 955), plaintiff came forward with sufficient evidence to meet her burden. Plaintiff relied, inter alia, upon the affirmation of her treating physician, who opined, based on his contemporaneous and recent examinations, as well as upon his review of the MRI of plaintiff's lumbar spine, that plaintiff's injuries and range of motion limitations were permanent and causally related to the subject accident. The doctor's affirmation was sufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury under the significant limitation of use and permanent consequential limitation of use categories of Insurance Law § 5102 (d) as a result of the accident ( see Sinfelt v Helm's Bros., Inc., 62 AD3d 983; Williams v Clark, 54 AD3d 942). Accordingly, the judgment is reversed, the order granting defendants' motion for summary judgment is vacated and defendants' motion for summary judgment is denied.
Golia, J.P., Pesce and Rios, JJ., concur.