| McCree v Sam Trans Corp. |
| 2011 NY Slip Op 02125 [82 AD3d 601] |
| March 24, 2011 |
| Appellate Division, First Department |
| Ethel McCree, Appellant, v Sam Trans Corp., Respondent,et al., Defendant. |
—[*1] Baker, McEvoy, Morrissey & Moskovitz, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered October 30, 2009, whichgranted defendant Sam Trans Corp.'s motion for summary judgment dismissing the complaint onthe threshold issue of "serious injury" within the meaning of Insurance Law § 5102 (d),unanimously modified, on the law, to deny the motion as to plaintiff's "permanent consequentiallimitation" and "significant limitation" claims, and otherwise affirmed, without costs.
Defendant failed to satisfy its burden of demonstrating prima facie that no factual issues existwhether plaintiff suffered an injury that caused "consequential limitation" and "significantlimitation." While its medical expert attributed the range of motion restrictions he found inplaintiff's right shoulder and cervical spine to degenerative changes or a pre-existing condition,his opinion lacked a factual basis and was conclusory (see Frias v James, 69 AD3d 466 [2010]; Torres v Knight, 63 AD3d 450[2009]).
However, defendant demonstrated the absence of factual issues as to plaintiff's 90/180-dayclaim by submitting plaintiff's deposition testimony that she was unable to leave her home forabout a week following the accident. Plaintiff's affidavit testimony that she was confined to herhome for the first five months following the accident appears to have been tailored to avoid [*2]the consequences of her deposition testimony and is thereforeinsufficient to raise an issue of fact as to the duration of her nonpermanent injuries (see Alloway v Rodriguez, 61 AD3d591, 592 [2009]). Concur—Gonzalez, P.J., Catterson, Richter, Abdus-Salaam andRomÁn, JJ.