Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), dated July 25, 2006, deemed from a judgment of the same court entered January 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 25, 2006 order granting a motion by defendants Gin Taxi, Inc. and Cheick Kantako for summary judgment, dismissed the action as against defendants Gin Taxi, Inc. and Cheick Kantako.

Judgment reversed without costs, order granting the motion of defendants Gin Taxi, Inc. and Cheick Kantako for summary judgment dismissing the complaint as against them vacated, and said motion granted only to the extent of dismissing plaintiff's claim as against these defendants under the 90/180 day category of Insurance Law § 5102 (d), and otherwise denied.

In this action to recover damages for personal injuries, the court granted a motion by defendants Gin Taxi, Inc. and Cheick Kantako for summary judgment dismissing the complaint as against them. Plaintiff's only contention on appeal is that the court wrongfully found that he did not raise a triable issue of fact in response to these defendants' prima facie showing that plaintiff had not sustained a serious injury pursuant to Insurance Law § 5102 (d).

Contrary to the finding below, plaintiff adequately explained his gap in treatment, as he [*2]stated in his affidavit and deposition testimony that his no-fault benefits were discontinued and that he did not have private health insurance (see e.g. Francovig v Senekis Cab Corp., 41 AD3d 643 [2007]; Black v Robinson, 305 AD2d 438 [2003]; Ahmed v Khan, 5 Misc 3d 129[A], 2004 NY Slip Op 51269[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, the admissible portions of plaintiff's physician's report were sufficient to raise a triable issue of fact in this case. Although that report detailed examinations performed by another doctor whose reports were not submitted, it also set forth, among other things, the quantified results of two examinations done by the affirming doctor, one performed contemporaneously with the accident and one performed after defendants' motion was made. For each examination, the affirming doctor set forth plaintiff's degrees of motion and compared them to the normal ranges. Both examinations showed that plaintiff had limited ranges of motion, some supported by findings of spasm. In addition, plaintiff attached a sworn report of an MRI showing, among other things, disc herniation, and plaintiff's physician opined, with a reasonable degree of medical certainty, that plaintiff's injuries and herniation were causally related to the accident in question. Therefore, plaintiff's submissions were sufficient to raise a triable issue of fact as to whether he suffered a possible permanent consequential or significant limitation of use (Insurance Law § 5102 (d); see e.g. Iacovazzo v Ahmad, 27 AD3d 421 [2006]). However, in his opposition below, plaintiff failed to address defendant's prima facie showing that plaintiff had not sustained an injury pursuant to the 90/180 day category, and so that claim was properly dismissed.

In view of the foregoing, defendants' motion for summary judgment dismissing the complaint should have been granted as to plaintiff's claim under the 90/180 day category of Insurance Law § 5102 (d), and otherwise denied.

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