BEJARAN v. PEREZ (2010)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered September 16, 2009, which granted defendants' motion for summary judgment dismissing the complaint for lack of a serious injury, unanimously modified, on the law, the motion denied and the complaint reinstated only to the extent that the serious injury claim is based on inability to perform usual and customary activities for at least 90 of the 180 days following the accident, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered December 22, 2009, which denied plaintiff's motion to renew and reargue, unanimously dismissed, without costs, as academic with regard to renewal, and as taken from a nonappealable order with regard to reargument.

The reports of defendants' experts, based on examinations performed more than two years after the accident and addressed only to the permanency of plaintiff's injuries, failed to make a prima facie showing that plaintiff had not sustained a 90/180 injury (see Alexandre v. Dweck, 44 AD3d 597 [2007]; Loesburg v. Jovanovic, 264 A.D.2d 301 [1999] ). Nor did defendants submit any other evidence to show that plaintiff did not sustain such an injury. However, the court properly granted summary judgment with respect to alleged permanent injury and significant limitations, since plaintiff's experts failed to respond sufficiently to defendant's evidence on those claims.