Delgado v Badia

[*1] Delgado v Badia 2010 NY Slip Op 50029(U) [26 Misc 3d 130(A)] Decided on January 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570705/09.

Augustin Delgado, Plaintiff-Respondent,

against

Jorge Badia and David Nunez, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered June 23, 2009, which denied their motion for summary judgment.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered June 23, 2009, modified to dismiss plaintiff's 90/180-day claim of serious injury, and as modified, affirmed, without costs.

Defendants made a prima facie showing that plaintiff did not suffer a serious injury under Insurance Law § 5102(d) (see Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 350-351 [2002]). However, plaintiff raised triable issues based on medical reports quantifying restrictions of motion in plaintiff's back contemporaneous with the accident that persisted at a recent examination. Those restrictions, according to plaintiff's physicians, were caused by a herniated disc and radiculopathy sustained (or aggravated) in the subject motor vehicle accident, and the injuries were verified by MRIs and other objective medical evidence (see Colon v Bernabe, 65 AD3d 969 [2009]; Dieujuste v Kiss Mgt. Corp., 60 AD3d 514 [2009]). However, no triable issue was raised as to whether plaintiff sustained a serious injury under the 90/180-day category. Plaintiff's deposition testimony and affidavit indicated only relatively minor restrictions in her daily activities, and he submitted no medical proof directly substantiating his alleged inability to perform "substantially all" of his daily activities for 90 of the first 180 days following the accident (see Cruz v Aponte, 60 AD3d 431 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 13, 2010