| Quinones v Ksieniewicz |
| 2011 NY Slip Op 00270 [80 AD3d 506] |
| January 20, 2011 |
| Appellate Division, First Department |
| Rogelio Quinones, Appellant, v M. Ksieniewicz et al.,Respondents. |
—[*1] Brand Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), forrespondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered January 27, 2010, whichgranted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiffdid not suffer a serious injury within the meaning of Insurance Law § 5102 (d), unanimouslymodified, on the law, to deny the motion as to plaintiff's 90/180-day claim, and otherwise affirmed,without costs.
The affirmed reports of defendants' orthopedic surgeon and neurologist concerning plaintiff's rangeof motion and lack of evidence of disability established prima facie that plaintiff suffered no "significantlimitation" or "permanent consequential limitation of use" (Insurance Law § 5102 [d]), and shiftedthe burden to plaintiff to raise an issue of fact (see Franchini v Palmieri, 1 NY3d 536 [2003]; Smith v Brito, 23 AD3d 273 [2005]).Likewise, defendants' radiologist's finding of a preexisting degenerative condition had to be refuted byplaintiff (see Pommells v Perez, 4 NY3d566, 580 [2005]; Rodriguez vAbdallah, 51 AD3d 590, 592 [2008]). Plaintiff failed to meet his burden because theunaffirmed and unsworn medical reports he submitted in opposition were in inadmissible form andtherefore without probative value (see Grasso v Angerami, 79 NY2d 813 [1991]).
However, defendants failed to establish prima facie that plaintiff did not sustain a medicallydetermined injury "of a non-permanent nature" that prevented him from performing substantially all ofhis customary and daily activities for 90 of the 180 days immediately following the accident (see Toussaint v Claudio, 23 AD3d 268[2005]; Feaster v Boulabat, 77 AD3d440, 441 [2010]). The reports of defendants' medical experts were based on examinations ofplaintiff conducted nearly two years after the subject accident, and addressed plaintiff's condition as ofthe time of the examination, not during the six months immediately after the accident. The MRI studiesthat the defense experts reviewed were performed 10 months after the accident. Concur—Tom,J.P., Andrias, Saxe, Freedman and Manzanet-Daniels, JJ.