GEMINI v. CHRIST (2009)

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered July 15, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, the 90/180-day portion of his “serious injury” claim dismissed, and otherwise affirmed, without costs.

 Defendants' medical expert evaluations of plaintiffs set forth the objective tests performed in support of their conclusions that plaintiffs did not suffer serious injury.   Partial denial of their motion was nonetheless appropriate, inasmuch as plaintiffs, through the affidavits of their experts and treating physicians, sufficiently demonstrated an issue of fact as to whether they had suffered serious injury on a theory of significant and permanent consequential limitation of their cervical and lumbar spines (see Brown v. Dunlap, 4 N.Y.3d 566, 577-578, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2008] ).

 Plaintiffs failed, however, to raise an issue of fact concerning their inability to perform daily activities for at least 90 of the 180 days immediately following the accident (see Ayala v. Douglas, 57 A.D.3d 266, 869 N.Y.S.2d 47 [2008] ).   Plaintiff Gemini's affidavit contradicted his deposition testimony in this respect and appears to have been tailored to avoid the consequences of that testimony, and thus was insufficient to raise a triable issue of fact (see Blackmon v. Dinstuhl, 27 A.D.3d 241, 810 N.Y.S.2d 79 [2006] ).

We have considered the appellants' remaining arguments and find them unavailing.