Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), dated June 15, 2006. The order, insofar as appealed from as limited by the brief, granted defendant Jose Torres's cross motion for summary judgment on the threshold category of serious injury pursuant to Insurance Law § 5102 (d) as to any injury claimed by plaintiff, except for one pertaining to her right shoulder.

Order, insofar as appealed from, reversed without costs and defendant Jose Torres's cross motion for summary judgment denied.

In this personal injury action, defendant Jose Torres sought summary judgment dismissing plaintiff's complaint as against him on the ground that plaintiff had not suffered a serious injury under Insurance Law § 5102 (d). The court found that Torres had established a prima facie case as to all of plaintiff's claimed injuries except for one to her right shoulder, which was alleged in her bill of particulars, and which Torres's examining doctor failed to address. As Torres failed to address one of plaintiff's claimed injuries, he did not establish a prima facie case that plaintiff did not sustain a permanent consequential or significant limitation pursuant to Insurance Law § 5102 (d) (see e.g. Gerson v C.L.S. Transp., Inc., 37 AD3d 530 [2007]; Villavicencio v Mieles, 7 AD3d 517 [2004]; Morales v New York City Tr. Auth., 287 AD2d 604 [*2][2001]; Meyer v Gallardo, 260 AD2d 556 [1999]; Minori v Hernandez Trucking Co., 239 AD2d 322 [1997]). Moreover, the testimony pointed to by Torres failed to establish that plaintiff had not suffered an injury pursuant to the 90/180 category. In addition, we note that, contrary to the finding of the court below, Torres's moving papers established no gap in treatment that plaintiff was required to explain. The evidence in the record, including plaintiff's deposition testimony which was annexed to Torres's moving papers, indicates
that plaintiff received various treatments, including physical therapy, acupuncture, and chiropractic, regularly from the time of the accident to the time of Torres's cross motion. Accordingly, Torres's cross motion for summary judgment should have been denied in its entirety.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 12, 2008