Porter v Bajana

Porter v Bajana 2011 NY Slip Op 01715 Decided on March 8, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 8, 2011
Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam, Román, JJ.
4476 302815/07

[*1]Frances Porter, Plaintiff-Respondent-Appellant,

v

Franklin Bajana, Defendant-Appellant-Respondent.




Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant-respondent.
Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel),
for respondent-appellant.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about July 27, 2010, which granted defendant's motion for summary judgment on the threshold issue of serious injury as to plaintiff's claims of injury of a permanent nature and denied the motion as to her claim of injury of a non-permanent nature, unanimously modified, on the law, to grant the motion as to the claim of non-permanent serious injury, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The reports of defendant's expert neurologist and radiologist established prima facie that plaintiff's injuries were not permanent or significant because the injuries had resolved and plaintiff had full range of motion in her cervical and lumbar spine (see Insurance Law § 5102[d]; Thompson v Ramnarine, 40 AD3d 360 [2007]). Moreover, the radiologist affirmed that plaintiff suffered from a preexisting degenerative condition and that the motor vehicle accident did not proximately cause her injuries. In opposition, plaintiff's medical expert failed to address or rebut defendant's evidence that plaintiff suffered from a preexisting degenerative condition (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Valentin v Pomilla, 59 AD3d 184, 184-185 [2009]).

Plaintiff also failed to raise an issue of fact as to her 90/180-day claim, because her [*2]subjective statements indicating the length of time she was unable to work and was substantially disabled from performing her customary and daily activities were not supported by objective medical evidence (see Becerril v Sol Cab Corp., 50 AD3d 261, 262 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2011

CLERK