Fofana v Chatram

[*1] Fofana v Chatram 2009 NY Slip Op 51321(U) [24 Misc 3d 128(A)] Decided on June 30, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, Shulman, JJ
.

Hakou Fofana, Plaintiff-Respondent,570313/09

against

Nyron Chatram and Steve Sookhoo, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered November 10, 2008, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered November 10, 2008, modified to dismiss plaintiff's 90/180 day claim of serious injury, and as modified, affirmed, without costs.

While defendants satisfied their initial burden of presenting a prima facie case that plaintiff did not sustain a serious injury (see Insurance Law § 5102[d]), the court properly found that plaintiff raised a triable issue through his medical experts' affirmations, which attested to the existence of bulging discs in plaintiff's lumbar and cervical spine, and quantified range of motion limitations contemporaneous with the motor vehicle accident and persisting upon recent examination (see Nunez v Zhagui, 60 AD3d 559 [2009]). We note, however, that the record does not reveal the existence of an issue of fact concerning plaintiff's alleged inability to perform customary and material daily activities for at least 90 of the 180 days immediately following the accident (see Morris v Ilya Cab Corp., €" AD3d €" , 2009 NY Slip Op 2668 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 30, 2009