| Bejaran v Perez |
| 2010 NY Slip Op 08634 [78 AD3d 571] |
| November 23, 2010 |
| Appellate Division, First Department |
| Belkis Bejaran, Appellant, v Lourdes Perez et al.,Respondents. |
—[*1] Abrams, Gorelick, Friedman & Jacobson, P.C., New York (Dennis J. Monaco of counsel), forrespondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered September 16, 2009, whichgranted defendants' motion for summary judgment dismissing the complaint for lack of a serious injury,unanimously modified, on the law, the motion denied and the complaint reinstated only to the extent thatthe serious injury claim is based on inability to perform usual and customary activities for at least 90 ofthe 180 days following the accident, and otherwise affirmed, without costs. Appeal from order, samecourt and Justice, entered December 22, 2009, which denied plaintiff's motion to renew and reargue,unanimously dismissed, without costs, as academic with regard to renewal, and as taken from anonappealable order with regard to reargument.
The reports of defendants' experts, based on examinations performed more than two years afterthe accident and addressed only to the permanency of plaintiff's injuries, failed to make a prima facieshowing that plaintiff had not sustained a 90/180-day injury (see Alexandre v Dweck, 44 AD3d 597 [2007]; Loesburg vJovanovic, 264 AD2d 301 [1999]). Nor did defendants submit any other evidence to show thatplaintiff did not sustain such an injury. However, the court properly granted summary judgment withrespect to alleged permanent injury and significant limitations, since plaintiff's experts failed to respondsufficiently to defendants' evidence on those claims. Concur—Andrias, J.P., Catterson,Moskowitz, Manzanet-Daniels and RomÁn, JJ.