Summary
holding that defendant has not established its burden with respect to the 90/180 day injury, but awarding summary judgment to defendant on the "permanent consequential limitation" and "significant limitation" prongs
Summary of this case from Popovic v. City of N.Y.Opinion
No. 1077.
May 15, 2007.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about January 26, 2006, which granted defendants' motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102 (d), unanimously modified, on the law, to deny the motion with respect to so much of the complaint as alleges a 90/180-day injury, the complaint reinstated to that extent, and otherwise affirmed, without costs.
Pollack, Pollack, Isaac DeCicco, New York (Brian J. Isaac of counsel), for appellants.
Baker, McEvoy, Morrissey Moskovits, P.C., New York (Holly E. Peck of counsel), for respondents.
Before: Saxe, J.P., Nardelli, Gonzalez, Sweeny and Catterson, JJ.
The report of defendants' neurologist addresses plaintiff's condition at the time of examination, nine months after the accident, and is insufficient to establish, prima facie, that plaintiff was not incapacitated from performing substantially all of his customary and daily activities for 90 out of the 180 days immediately following the accident ( see Toussaint v Claudio, 23 AD3d 268). However, such report, which was based on numerous specific tests, did establish, prima facie, that plaintiff's injuries had resolved and that he had full range of motion in his cervical and lumbar spine and shoulders. Although the report of plaintiff's medical expert, a neurologist who examined plaintiff 11 months after the accident, assigns specific percentages to plaintiff's limitations in range of motion, it does not indicate the specific tests conducted, and therefore fails to raise an issue of fact as to whether the reported limitations are permanent or significant ( see Taylor v Terrigno, 27 AD3d 316).