| Arenas v Guaman |
| 2012 NY Slip Op 06047 [98 AD3d 461] |
| August 28, 2012 |
| Appellate Division, First Department |
| Alejandra Arenas, Respondent, v Felix Guaman et al.,Appellants. |
—[*1] Ephrem J. Wertenteil, New York, for respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 16, 2011, whichdenied defendants' motion for summary judgment dismissing the complaint alleging a seriousinjury within the meaning of Insurance Law § 5102 (d), unanimously modified, on the law,to grant the motion as to plaintiff's 90/180-day claim, and otherwise affirmed, without costs.
Assuming that, with respect to plaintiff's claims of significant limitation or permanentconsequential limitation of use of her right shoulder and cervical and lumbar spine, defendantsmade a prima facie showing of entitlement to judgment as a matter of law in support of theirmotion, plaintiff submitted sufficient medical evidence to raise triable issues of fact as to theseverity of her injuries and as to the injuries' causal connection with the accident.
Defendants met their burden as to the 90/180-day claim by relying on plaintiff's testimonythat she was confined to bed for only "a month or two" and was unable to perform only a fewactivities (see Williams v BaldorSpecialty Foods, Inc., 70 AD3d 522, 522-523 [2010]; see also Insurance Law§ 5102 [d]). Her physician's findings with respect to her restrictions do not raise a triableissue of fact, since they are based on plaintiff's subjective complaints of pain (see Browne v Covington, 82 AD3d406, 407 [2011]; see also Below v Randall, 240 AD2d 939, 940 [1997]).Concur—Mazzarelli, J.P., Friedman, Acosta, Freedman and Abdus-Salaam, JJ.