| Blake v Portexit Corp. |
| 2010 NY Slip Op 00065 [69 AD3d 426] |
| January 7, 2010 |
| Appellate Division, First Department |
| Billy Blake, Respondent, v Portexit Corp. et al.,Appellants. |
—[*1] Stillman & Stillman, P.C., Bronx (Robert A. Birnbaum of counsel), for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered May 19, 2009, whichdenied defendants' motion for summary judgment dismissing the complaint, unanimouslymodified, on the law, to grant the motion as to plaintiff's knee injury and 90/180-day claim, andotherwise affirmed, without costs.
Defendants satisfied their initial burden on summary judgment by establishing, prima facie,with the submission of the medical reports of their expert neurologist, orthopedist andradiologist, that plaintiff did not suffer a serious injury within the meaning of Insurance Law§ 5102 (d). Defendants set forth objective tests supporting their claim that plaintiffsuffered no limitation in range of motion.
Plaintiff, in response, raised a triable issue of fact as to whether he suffered a significant orpermanent consequential limitation of use of his spine. His chiropractor "identifiedmeasurements of loss of range of motion in plaintiff's cervical and lumbar spine, and on thatpredicate opined that plaintiff suffered severe and permanent injuries as a result of the accident"(Pommells v Perez, 4 NY3d566, 577 [2005]). The chiropractor adequately related plaintiff's spinal injuries to theaccident.
However, plaintiff failed to raise a triable issue of fact as to whether his knee injuryconstituted a serious injury pursuant to Insurance Law § 5102 (d) (see Antonio v Gear Trans Corp., 65AD3d 869, 870 [2009]; see alsoDeJesus v Paulino, 61 AD3d 605, 608 [2009]).
Plaintiff also failed to raise a triable issue of fact as to his 90/180-day claim. The fact that hemissed more than 90 days of work is not determinative (see e.g. Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 [2009]); thestatute requires plaintiff to be prevented "from performing substantially all of thematerial acts which constitute [his] usual and customary daily activities" (Insurance Law §5102 [d] [emphasis added]). Plaintiff's chiropractor's affidavit, which said that plaintiff was"totally disabled," was too general to raise an issue of fact (see Valentin v Pomilla, 59 AD3d 184, 186-187 [2009]; see alsoAntonio, 65 AD3d at 869-870), and the chiropractor's advice not to lift anything heavy alsofails to create an issue of fact (seeOnishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]; Gorden v Tibulcio, 50 AD3d 460,463 [2008]). Even if one reads plaintiff's affidavit to say that for the first six months after theaccident, he could not play [*2]sports with his children and haddifficulty walking, going up stairs, and getting into cars, it does not raise a triable issue of factbecause plaintiff's statement is unsupported by medical evidence (see e.g. Pinkhasov v Weaver, 57 AD3d334, 335 [2008]) and because the activities listed therein do not constitute substantially allof his activities (see Gibbs v HeeHong, 63 AD3d 559, 560 [2009]). Concur—Mazzarelli, J.P., Friedman, Nardelli,Renwick and RomÁn, JJ.