| Rivera v Super Star Leasing, Inc. |
| 2008 NY Slip Op 09708 [57 AD3d 288] |
| December 11, 2008 |
| Appellate Division, First Department |
| Edgardo L. Rivera, Respondent, v Super Star Leasing, Inc.,et al., Appellants. |
—[*1]
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 20, 2008,which denied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Defendants, through the affirmed reports of a radiologist, orthopedic surgeon andneurologist, made a prima facie showing of entitlement to summary judgment regardingplaintiff's claim of serious injury on the theory of "permanent consequential limitation of use of abody organ or member" (Insurance Law § 5102 [d]).
However, plaintiff's expert raised a triable issue of fact on this theory of serious injury.Plaintiff's expert, who reviewed the relevant medical records and examined plaintiff as recentlyas September 2007, provided both quantitative and qualitative range of motion limitations in hisreport. He opined that plaintiff's symptoms were caused by the accident, and concluded thatplaintiff had sustained permanent consequential limitation of use of his cervical and lumbar spineand right shoulder (see Garner vTong, 27 AD3d 401 [2006]; Gonzalez v Vasquez, 301 AD2d 438 [2003]). Tothe extent the expert incorporated into his affirmation several unsworn reports of other doctorswho examined plaintiff, these unsworn reports were not the only evidence submitted by plaintiffin opposition to the motion, and may be considered to deny a motion for summary judgment(see e.g. Largotta v Recife Realty Co., 254 AD2d 225 [1998]).
Furthermore, the motion court properly concluded that defendants failed to demonstrate aprima facie entitlement to summary judgment on plaintiff's 90/180-day claim. Defendants'experts did not examine plaintiff until approximately two years after the accident and could offerno conclusions regarding plaintiff's condition in the 180 days following the accident (seeLoesburg v Jovanovic, 264 AD2d 301 [1999]).[*2]
We have considered defendants' remaining argumentsand find them unavailing. Concur—Andrias, J.P., Saxe, Sweeny, Catterson andMoskowitz, JJ.