Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), entered January 29, 2007, which denied their motion for summary judgment dismissing the complaint.

Per Curiam:
Order (Sharon A.M. Aarons, J.), entered January 29, 2007, affirmed, with $10 costs.

Defendants' motion for summary judgment was properly denied since their own examining physician found that plaintiff continued to have significant quantified restrictions of motion three years after the subject vehicular accident. These findings alone raise an issue of fact as to whether plaintiff sustained a significant limitation of a body function or system as defined under Insurance Law § 5102(d) and refute the defendant's physician's statement that his examination of plaintiff revealed no significant limitation or disability (see Servones v Toribio, 20 AD3d 330 [2005]). Even if we were to find that defendants' met their prima facie burden, plaintiff's opposition papers were sufficient to raise a triable issue as to serious injury.

While sustaining the action upon the aforementioned grounds, we note that the evidence does not disclose the existence of a triable issue as to whether plaintiff, by reason of the injuries he sustained in the accident, was prevented from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Insurance Law §5102[d]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 27, 2008