| Prestol v McKissock |
| 2008 NY Slip Op 03979 [50 AD3d 600] |
| April 29, 2008 |
| Appellate Division, First Department |
| Norma C. Prestol, Respondent, v Carol I. McKissock et al.,Defendants, and Angel M. Calvo, Appellant. |
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Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered September 4,2007, which denied defendant Calvo's motion (and the remaining defendants' cross motion) forsummary judgment dismissing the complaint on the ground that plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d), unanimously modified, on the law,to grant the motion to the extent of dismissing plaintiff's claim that she sustained a medicallydetermined injury of a nonpermanent nature that prevented her from performing substantially allof her usual and customary daily activities for 90 of the 180 days immediately following theaccident, and, upon a search of the record, to grant the cross motion to the same extent, andotherwise affirmed, without costs.
The only evidence as to plaintiff's claim of injury in the 90/180 period is her own depositiontestimony that she was confined to bed and home and unable to work for approximately twomonths, i.e., 60 days (see Furrs vGriffith, 43 AD3d 389 [2007]).
As to plaintiff's remaining claims, while defendants met their initial burden on their motions,in opposition, plaintiff raised a triable issue of fact through her treating chiropractor's affidavit,which reported objective medical findings of range of motion limitations contemporaneous withthe accident and on recent examination and adequately explained the reason for the three-yeargap in plaintiff's treatment (see Sung vMihalios, 44 AD3d 500 [2007]; Green v Nara Car & Limo, Inc., 42 AD3d 430 [2007]). Byresubmitting defendants' expert orthopedist's affirmed report, plaintiff also sufficiently countereddefendants' argument that her injuries reflected preexisting degenerative disease (see Pommells v Perez, 4 NY3d566, 577-578 [2005]).
Upon a search of the record, plaintiff's 90/180 claim is also dismissed as against defendantsCarol I. McKissock and Jonathon P. McKissock (see Brewster v FTM Servo, Corp., 44 AD3d 351, 353 [2007]).Concur—Tom, J.P., Mazzarelli, Andrias and Williams, JJ.