| Frias v James |
| 2010 NY Slip Op 00301 [69 AD3d 466] |
| January 14, 2010 |
| Appellate Division, First Department |
| Rafael Frias, Respondent, v Claudette James et al.,Appellants. |
—[*1] Daniel J. Hansen, New York, for respondent.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered July 7, 2009, which,in an action for personal injuries arising out of a motor vehicle accident, denied defendants'motion for summary judgment dismissing the complaint, unanimously modified, on the law, todismiss plaintiff's 90/180-day claim of serious injury, and otherwise affirmed, without costs.
Defendants failed to establish their prima facie entitlement to judgment as a matter of lawwith respect to plaintiff's claims under the "permanent consequential limitation of use of a bodyorgan or member" and "significant limitation of use of a body function or system" categories ofserious injury under Insurance Law § 5102 (d). In support of their motion, defendantssubmitted evidence that plaintiff was suffering from restrictions of motion in his lumbar spine,and the opinion of defendants' examining neurologist that such restrictions were attributed todegenerative causes. That opinion, however, was conclusory as it was advanced without anyelaboration and without any reference to degeneration in the MRI reports reviewed (see Pommells v Perez, 4 NY3d566, 577-578 [2005]; June vAkhtar, 62 AD3d 427, 428 [2009]). In view of the foregoing, it is not necessary toconsider whether plaintiff's opposition with respect to those claims was sufficient to raise atriable issue of fact (see Glynn vHopkins, 55 AD3d 498 [2008]).
However, plaintiff's claim of serious injury under the 90/180-day category should have beendismissed. Plaintiff's bill of particulars that was submitted with defendant's motion failed todemonstrate that substantially all his usual activities were curtailed during the requisite timeperiod (see Licari v Elliott, 57 NY2d 230, 238-239 [1982]; Uddin v Cooper, 32 AD3d 270,271-[*2]272 [2006], lv denied 8 NY3d 808 [2007]), andplaintiff has failed to address this issue on appeal. Concur—Andrias, J.P., McGuire,Moskowitz, Freedman and RomÁn, JJ.