| Fernandez v Niamou |
| 2009 NY Slip Op 06595 [65 AD3d 935] |
| September 22, 2009 |
| Appellate Division, First Department |
| Margie Fernandez, Respondent-Appellant, v OumarouNiamou et al., Appellants-Respondents. |
—[*1] Law Office of Vincent P. Crisci, New York (David Weiser of counsel), for Doris Lanier andSharee Lanier, appellants-respondents. Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), forrespondent-appellant.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 17,2008, which, insofar as appealed and cross-appealed from, granted defendants' motion forsummary judgment dismissing all of plaintiff's threshold claims under Insurance Law §5102 (d) except her loss of fetus claim, unanimously modified, on the law, to reinstate plaintiff'sthreshold claims with respect to the permanent consequential limitation of use of a body organ ormember and significant limitation of use of a body function or system categories of seriousinjury within the meaning of Insurance Law § 5102 (d), and otherwise affirmed, withoutcosts.
We agree with the motion court that defendants failed to demonstrate their prima facieentitlement to judgment as a matter of law with respect to plaintiff's claim for loss of her fetus,and as a result, that the burden never shifted to plaintiff to raise a triable issue of fact withrespect to that claim (cf. Gilphilin v Ware, 205 AD2d 353 [1994]).
Furthermore, defendants made a prima facie showing that plaintiff did not sustain a90/180-day injury. That plaintiff missed more than 90 days of work is not determinative (see Uddin v Cooper, 32 AD3d270, 271 [2006], lv denied 8 NY3d 808 [2007]), and no evidence in the recordsuggested that plaintiff was prevented from performing substantially all of the material acts thatconstituted her usual and customary daily activities for 90 days during the 180 days followingthe accident (Ortiz v Ash Leasing,Inc., 63 AD3d 556 [2009]).
With respect to the permanent consequential limitation of use and significant limitation ofuse categories, there was a contradiction in the reports of defendants' experts. While one expertstated that any changes in plaintiff's lumbar and cervical spines were degenerative, the otherexpert not only failed to find any degenerative changes, but failed to rule out the possibility that[*2]plaintiff did, in fact, sustain a traumatic injury to her neck inthe accident. Accordingly, we modify the order. Concur—Gonzalez, P.J., Andrias,Catterson, Acosta and Abdus-Salaam, JJ.