| Weinberg v Okapi Taxi, Inc. |
| 2010 NY Slip Op 03791 [73 AD3d 439] |
| May 4, 2010 |
| Appellate Division, First Department |
| Joshua Weinberg, Appellant, v Okapi Taxi, Inc., et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered March 6, 2009, whichgranted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Plaintiff failed to rebut defendants' prima facie showing that there was no "permanentconsequential limitation" or "significant limitation" of use of his ankle (Insurance Law §5102 [d]). Plaintiff's orthopedist consistently reported a full range of motion of the ankle.Plaintiff claims limitations as to prolonged standing, walking, kneeling, or sitting, but he setsforth no objective basis for comparing these limitations "to the normal function, purpose and useof the affected body organ, member, function or system" (Toure v Avis Rent A Car Sys.,98 NY2d 345, 350 [2002]). Nor does he address the degenerative changes noted in the X-rayreport from the emergency room or the opinion of defendants' expert that plaintiff's injuriespredated the accident (see Pommells vPerez, 4 NY3d 566, 579-580 [2005]). Plaintiff also submitted no objective medicalproof that he could not perform substantially all his daily activities for 90 of the first 180 daysfollowing the accident (see Rossi vAlhassan, 48 AD3d 270 [2008]). His claimed inability to work for more than 90 days isnot dispositive of the existence of a 90/180 category injury (Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8NY3d 808 [2007]). Concur—Andrias, J.P., Friedman, Catterson, McGuire andRomÁn, JJ. [Prior Case History: 2009 NY Slip Op 30491(U).]