| Dennis v New York City Tr. Auth. |
| 2011 NY Slip Op 04092 [84 AD3d 579] |
| May 17, 2011 |
| Appellate Division, First Department |
| Allen J. Dennis, Appellant, v New York City TransitAuthority et al., Respondents. |
—[*1] Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondents.
Order, Supreme Court, Bronx County (Stanley B. Green, J.), entered January 15, 2010,which granted defendants' motion for summary judgment dismissing the complaint on the groundthat plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion denied, except as to plaintiff's 90/180-dayclaim, and otherwise affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury as aresult of the accident. Defendants submitted affirmed reports of an orthopedist and neurologistreporting normal ranges of motion in all tested body areas, specifying the objective tests theyused to arrive at the measurements, and concluding that plaintiff's injuries were resolved (see DeJesus v Paulino, 61 AD3d605 [2009]; Christian v Waite,61 AD3d 581 [2009]).
In opposition, plaintiff raised a triable issue of fact. He submitted affirmed reports of aradiologist who found bulging discs in the cervical and lumbar spine and a herniated disc in thecervical spine, as well as medical findings of limitations in range of motion of the cervical andlumbar spine, both recently and contemporaneous with his accident (see Rivera v Super Star Leasing, Inc.,57 AD3d 288 [2008]; see alsoSimpson v Montag, 81 AD3d 547, 548 [2011]). The affirmations "under penalties ofperjury" sufficiently complied with the requirements of CPLR 2106 (see generally Collins vAA Truck Renting Corp., 209 AD2d 363 [1994]). Furthermore, plaintiff adequatelyexplained that he ceased physical therapy when his no-fault benefits were no longer available (see Jacobs v Rolon, 76 AD3d 905,906 [2010]).
However, plaintiff's deposition and bill of particulars, in which he admitted that he was notconfined to bed or home, refute his 90/180-day claim (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522 [2010]).Concur—Mazzarelli, J.P., Sweeny, Acosta, Renwick and DeGrasse, JJ.