ALEXANDER v. GARCIA (2007)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 10, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss so much of the complaint as claims an injury or impairment that prevented plaintiff from performing substantially all of the material acts constituting his usual and customary daily activities for at least 90 days during the 180 days immediately following the accident, and otherwise affirmed, without costs.

Although the affirmation of defendants' physician, who did not examine plaintiff until almost two years after the accident, failed to make a prima facie showing that plaintiff did not sustain a 90/180 injury (see Toussaint v. Claudio, 23 A.D.3d 268, 803 N.Y.S.2d 564 [2005] ), the necessary prima facie showing was made by plaintiff's own deposition testimony that he was not confined to bed or home following the accident and did not make any claims for lost wages, and by a record otherwise devoid of evidence tending to show such an injury.   Accordingly, we dismiss the 90/180 claim (see Uddin v. Cooper, 32 A.D.3d 270, 271, 820 N.Y.S.2d 44 [2006], lv. denied 8 N.Y.3d 808, 834 N.Y.S.2d 89, 865 N.E.2d 1256 [2007] ).   We have considered defendants' arguments with respect to plaintiff's other claims of serious injury and find them unavailing.