| Porter v Bajana |
| 2011 NY Slip Op 01715 [82 AD3d 488] |
| March 8, 2011 |
| Appellate Division, First Department |
| Frances Porter, Respondent-Appellant, v Franklin Bajana,Appellant-Respondent. |
—[*1] Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel), forrespondent-appellant.
Order, Supreme Court, Bronx County (Stanley B. Green, J.), entered on or about July 27,2010, which granted defendant's motion for summary judgment on the threshold issue of seriousinjury as to plaintiff's claims of injury of a permanent nature and denied the motion as to herclaim of injury of a nonpermanent nature, unanimously modified, on the law, to grant the motionas to the claim of nonpermanent serious injury, and otherwise affirmed, without costs. The Clerkis directed to enter judgment in favor of defendant dismissing the complaint.
The reports of defendant's expert neurologist and radiologist established prima facie thatplaintiff's injuries were not permanent or significant because the injuries had resolved andplaintiff had full range of motion in her cervical and lumbar spine (see Insurance Law§ 5102 [d]; Thompson vRamnarine, 40 AD3d 360 [2007]). Moreover, the radiologist affirmed that plaintiffsuffered from a preexisting degenerative condition and that the motor vehicle accident did notproximately cause her injuries. In opposition, plaintiff's medical expert failed to address or rebutdefendant's evidence that plaintiff suffered from a preexisting degenerative condition (see Pommells v Perez, 4 NY3d566, 580 [2005]; Valentin vPomilla, 59 AD3d 184, 184-185 [2009]).
Plaintiff also failed to raise an issue of fact as to her 90/180-day claim, because her [*2]subjective statements indicating the length of time she was unableto work and was substantially disabled from performing her customary and daily activities werenot supported by objective medical evidence (see Becerril v Sol Cab Corp., 50 AD3d 261, 262 [2008]).Concur—Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam and RomÁn, JJ.