RIVERA v. SUPER STAR LEASING INC (2008)

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 20, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Defendants, through the affirmed reports of a radiologist, orthopedic surgeon and neurologist, made a prima facie showing of entitlement to summary judgment regarding plaintiff's claim of serious injury on the theory of “permanent consequential limitation of use of a body organ or member” (Insurance Law § 5102[d] ).

 However, plaintiff's expert raised a triable issue of fact on this theory of serious injury.   Plaintiff's expert, who reviewed the relevant medical records and examined plaintiff as recently as September 2007, provided both quantitative and qualitative range of motion limitations in his report.   He opined that plaintiff's symptoms were caused by the accident, and concluded that plaintiff had sustained permanent consequential limitation of use of his cervical and lumbar spine and right shoulder (see Garner v. Tong, 27 A.D.3d 401, 811 N.Y.S.2d 400 [2006];  Gonzalez v. Vasquez, 301 A.D.2d 438, 754 N.Y.S.2d 7 [2003] ).   To the extent the expert incorporated into his affirmation several unsworn reports of other doctors who examined plaintiff, these unsworn reports were not the only evidence submitted by plaintiff in opposition to the motion, and may be considered to deny a motion for summary judgment (see e.g. Largotta v. Recife Realty Co., 254 A.D.2d 225, 679 N.Y.S.2d 141 [1998] ).

 Furthermore, the motion court properly concluded that defendants failed to demonstrate a prima facie entitlement to summary judgment on plaintiff's 90/180-day claim.   Defendants' experts did not examine plaintiff until approximately two years after the accident and could offer no conclusions regarding plaintiff's condition in the 180 days following the accident (see Loesburg v. Jovanovic, 264 A.D.2d 301, 694 N.Y.S.2d 362 [1999] ).

We have considered defendants' remaining arguments and find them unavailing.