Majority
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered April 20, 2010, which, to the extent appealed from, denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to meet their initial burden of establishing prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Their examining orthopedist found limitations in range of motion in plaintiffs cervical and lumbar spines and both knees, and opined that these were attributable to degenerative changes. However, plaintiff testified that she had been asymptomatic before her car accident, and her orthopedic surgeon opined in a report submitted by defendants that plaintiffs injuries were causally related to the accident. Moreover, defendants’ orthopedist’s opinion that, while plaintiff may have sustained injuries to her cervical and lumbar spines and left knee in the accident, these injuries had resolved, is belied by the limitations in range of motion that he found in those areas (see Pommells v Perez, 4
The report of defendants’ orthopedist suggesting that plaintiffs injuries had resolved was based on an examination of plaintiff performed almost one year after the subject accident and was thus insufficient to show that plaintiff did not sustain a 90/180-day injury (see Toussaint v Claudio, 23 AD3d 268 , 268 [2005]). Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acosta and Román, JJ.
Cases cited
- Linton v. Nawaz 62 AD3d 434 at 438-439 p. 441
- Linton v. Nawaz 14 NY3d 821 p. 441
- Winegrad v. New York University Medical Center 64 NY2d 851 at 853 p. 441
- Glynn v. Hopkins 55 AD3d 498 at 498 p. 441
- Toussaint v. Claudio 23 AD3d 268 at 268 p. 441