Opinion
2009-398 Q C.
Decided January 22, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered October 22, 2008. The order, insofar as appealed from, denied a motion by defendant Marie R. Ferdinand for partial summary judgment dismissing the first cause of action as against her.
ORDERED that the order, insofar as appealed from, is modified by providing that the motion by defendant Marie R. Ferdinand for partial summary judgment dismissing the first cause of action as against her is granted to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff Joanne Clermont failed to meet the threshold requirement of suffering a serious injury under the 90/180-day category; as so modified, the order is affirmed without costs.
PRESENT: WESTON, J.P., GOLIA and STEINHARDT, JJ.
Insofar as is relevant to this appeal, plaintiff Joanne Clermont set forth as a first cause of action that she had sustained serious injuries in a motor vehicle accident. Defendant Marie R. Ferdinand moved for partial summary judgment dismissing said first cause of action as against her on the ground that Joanne Clermont did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court, inter alia, denied defendant Ferdinand's motion, and this appeal by Ferdinand ensued.
The Civil Court properly determined that the submissions in support of the summary judgment motion by defendant Ferdinand satisfied her prima facie burden of showing that plaintiff Joanne Clermont did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955).
In opposition to the motion, plaintiff Joanne Clermont raised a triable issue of fact as to whether she had suffered a serious injury to her cervical and lumbar spine under the permanent consequential limitation of use and significant limitation of use categories ( see Gaviria v Alvardo, 65 AD3d 567; Casey v Mas Transp., Inc., 48 AD3d 610). Her treating physician set forth in his affirmation that, based upon his examinations, including those which were contemporaneous with the accident as well as recent ones, and based upon the nerve conduction test which he had performed and his review of lumbar and cervical magnetic resonance imaging reports, Joanne Clermont's lumbar and cervical injuries were permanent and causally related to the accident ( see Casey, 48 AD3d at 611). Contrary to the assertions of defendant Ferdinand, Joanne Clermont adequately explained the gap in her treatment. Her treating physician stated in his affirmation that, in December 2007, he had concluded that she had reached maximum medical improvement and that further medical treatment would be only palliative ( see Bonilla v Tortoriello, 62 AD3d 637; Shtesl v Kokoros, 56 AD3d 544). Consequently, the affirmation of Joanne Clermont's medical expert raised a triable issue of fact with respect to the aforementioned categories of serious injury ( see McNeil v New York City Tr. Auth., 60 AD3d 1018; Altreche v Gilmar Masonry Corp., 49 AD3d 479).
However, Joanne Clermont's deposition testimony established that she had missed only four days of work as a result of the accident. Moreover, she failed to proffer any competent medical evidence to establish that she was prevented 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 (Insurance Law § 5102 [d]; see Manzanares v Aliev, 62 AD3d 963; LaMarre v Michelle Taxi, Inc., 60 AD3d 911; Thalassinos v Mendon Leasing Corp., 27 AD3d 642). Accordingly, the order is modified by providing that defendant Ferdinand's motion for partial summary judgment dismissing the first cause of action as against her is granted to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff Joanne Clermont failed to meet the threshold requirement of suffering a serious injury under the 90/180-day category.
Weston, J.P., Golia and Steinhardt, JJ., concur.