Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered September 27, 2006, deemed from a judgment entered on January 10, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 27, 2006 order which denied in part and granted in part defendant Ralph A. Lazen s motion for summary judgment, dismissed the complaint insofar as it set forth claims that plaintiff sustained a "permanent

loss of use of a body organ, member, function or system" and a "significant limitation of use of a body function or system."

Judgment affirmed without costs.

In this action, plaintiff sought to recover for serious injuries allegedly sustained in a motor vehicle accident on January 16, 2004. Defendant Ralph A. Lazen moved for summary judgment dismissing the complaint as against him on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendant Lazen established, through competent expert evidence, that plaintiff did not sustain a "permanent loss of use of a body organ, member, function or system" or a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]). In opposition, plaintiff failed to raise a triable issue of fact [*2](see Gaddy v Eyler, 79 NY2d 955 [1992]). While the affirmed report of plaintiff's neurologist, based upon an examination conducted some two and one-half years after the accident, quantified limitations of motion in plaintiff's lumbar spine based upon objective testing, and concluded that plaintiff's injuries were caused by the subject motor vehicle accident, there was no admissible report of any examination performed roughly contemporaneously with the accident which established plaintiff's limitations at that time (see Rodriguez v Cesar, 40 AD3d 731 [2007]; Manning v Tejeda, 38 AD3d 622 [2007]). Accordingly, the court below properly granted that branch of defendant Lazen's motion
for summary judgment dismissing plaintiff's claims predicated on those categories of serious injury.

With respect to the category of Insurance Law § 5102 (d) predicated on allegations that plaintiff sustained "a medically determined injury or impairment of a non-permanent nature which prevent[ed him] from performing substantially all of the material acts which constitute[d his] usual and customary daily activities for not less than [90] days during the [180] days immediately following the occurrence of the injury or impairment," the court below properly determined that defendant Lazen failed to establish a prima facie case as to that category, since plaintiff's condition during the 180 days immediately after the accident was not appropriately addressed in his motion papers (see Lopez v Geraldino, 35 AD3d 398 [2006]). Accordingly, the judgment is affirmed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 20, 2008