Cima v M.S.J.A., Inc.

[*1] Cima v M.S.J.A., Inc. 2007 NY Slip Op 51906(U) [17 Misc 3d 128(A)] Decided on October 3, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, P.J., SCHOENFELD, HEITLER, JJ
570275/07.

Anthony Cima, Plaintiff-Respondent, - -

against

M.S.J.A., Inc., Defendant-Appellant, - and - "John Doe" Defendant.

Defendant M.S.J.A., Inc. appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated January 22, 2007, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.
Order (Mitchell J. Danziger, J.), dated January
22, 2007, affirmed, with $10 costs.

The report of defendant's neurologist addresses plaintiff's condition at the time of examination, 17 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 (Insurance Law § 5102[d]; see Toussaint v Claudio, 23 AD3d 268 [2005]). However, the neurologist's report 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. In opposition, the affidavit of plaintiff's treating chiropractor included findings of persistent, quantified restrictions of motion attributed to the vehicular accident and enumerated the positive results of objective tests demonstrating spinal injury, and thus sufficed to raise an issue of fact as to whether the reported limitations are permanent or significant (see Silva v Vizcarrondo, 31 AD3d 292 [2006]).

We have examined appellant's remaining contentions and find them lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 3, 2007