PORTER v. BAJANA (2011)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about July 27, 2010, which granted defendant's motion for summary judgment on the threshold issue of serious injury as to plaintiff's claims of injury of a permanent nature and denied the motion as to her claim of injury of a non-permanent nature, unanimously modified, on the law, to grant the motion as to the claim of non-permanent serious injury, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The reports of defendant's expert neurologist and radiologist established prima facie that plaintiff's injuries were not permanent or significant because the injuries had resolved and plaintiff had full range of motion in her cervical and lumbar spine (see Insurance Law § 5102[d]; Thompson v. Ramnarine, 40 AD3d 360 [2007] ). Moreover, the radiologist affirmed that plaintiff suffered from a preexisting degenerative condition and that the motor vehicle accident did not proximately cause her injuries. In opposition, plaintiff's medical expert failed to address or rebut defendant's evidence that plaintiff suffered from a preexisting degenerative condition (see Pommells v. Perez, 4 NY3d 566, 580 [2005]; Valentin v. Pomilla, 59 AD3d 184, 184-185 [2009] ).

Plaintiff also failed to raise an issue of fact as to her 90/180-day claim, because her subjective statements indicating the length of time she was unable to work and was substantially disabled from performing her customary and daily activities were not supported by objective medical evidence (see Becerril v. Sol Cab Corp., 50 AD3d 261, 262 [2008] ).