Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered August 23, 2007, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered August 23, 2007, affirmed, without costs.

Defendants met their initial burden on the "serious injury" threshold issue (Insurance Law §5102[d]) by the submission of medical expert reports concluding that plaintiff did not suffer a disabling or permanent injury in the motor vehicle accident, and that abnormalities revealed on MRI studies were preexisting, degenerative and not traumatic in origin (see Perez v Rodriguez, 25 AD3d 506 [2006]).

While the failure of plaintiff or his physicians to address or explain the nearly five year "gap" in treatment is fatal to plaintiff's serious injury claims under the "significant limitation" and "permanent consequential limitation" categories (see Rubenscastro v Alfaro, 29 AD3d 436 [2006]; Vasquez v Reluzco, 28 AD3d 365 [2006]), plaintiff's opposition sufficed to raise a triable issue under the 90/180-day category. Plaintiff submitted evidence that he was disabled from work for more than 90 of the first 180 days after the accident (see Parmer v Opportunities Unlimited of N.Y., 48 AD3d 1252 [2008]; Beutel v Guild, 28 AD3d 1192 [2006]; cf. Uddin v Cooper, 32 AD3d 270 [2006]), as well as admissible medical reports attesting to his "total disability" for several months after the accident, detailing his difficulties with daily activities and asserting that the accident caused an exacerbation of plaintiff's previously asymptomatic underlying degenerative disease.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 22, 2008