Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered March 28, 2008. The order denied the motion by defendants Lucche O. Tineo and Victor M. Perez for summary judgment dismissing the complaint as to plaintiff Bernardo Rodriguez.

Order modified by providing that the motion by defendants Lucche O. Tineo and Victor M. Perez for summary judgment dismissing the complaint as to plaintiff Bernardo Rodriguez is granted to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that said plaintiff did not satisfy the threshold requirement of suffering a serious injury under the 90/180-day category; as so modified, affirmed without costs. [*2]

Plaintiffs commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. The action was discontinued as to defendants Luis Rodriguez and Rosa Iris Rodriguez. A motion by defendants Lucche O. Tineo and Victor M. Perez for summary judgment dismissing the complaint was granted as to plaintiff Jesus Rodriguez. Defendants Tineo and Perez (hereinafter defendants) subsequently moved for summary judgment dismissing the complaint as to plaintiff Bernardo Rodriguez (hereinafter plaintiff) on the ground that he did not satisfy the serious injury threshold requirement of Insurance Law § 5102 (d). The Civil Court denied the motion, and the instant appeal by defendants ensued.

Defendants met their prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The burden shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, plaintiff submitted, inter alia, an affirmed report from his treating orthopedist, who performed a recent examination of plaintiff and specified a decreased range of motion of plaintiff's cervical spine, lumbar spine, right shoulder and right knee (see Lim v Tiburzi, 36 AD3d 671 [2007]). The orthopedist also asserted that plaintiff's injuries were permanent and causally related to the subject motor vehicle accident. This evidence was sufficient to raise a triable issue of fact as to whether plaintiff sustained a permanent consequential or significant limitation of use of his cervical spine, lumbar spine, right shoulder and right knee as a result of the subject accident (see Williams v Clark, 54 AD3d 942 [2008]). We note that, contrary to defendants' assertions, the unsworn medical reports, upon which plaintiff's orthopedist relied, were referred to by defendants' examining physician and, thus, properly before the court (see Gastaldi v Chen, 56 AD3d 420 [2008]; Ayzen v Melendez, 299 AD2d 381 [2002]). Plaintiff adequately explained the gap in his treatment by stating in his affidavit that he stopped treatment because his medical costs would no longer be covered by no-fault benefits (see Jules v Barbecho, 55 AD3d 548 [2008]; Francovig v Senekis Cab Corp., 41 AD3d 643 [2007]).

However, plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained as a result of the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days following the accident (see Diaz v Lopresti, 57 AD3d 832 [2d Dept 2008]; Rabolt v Park, 50 AD3d 995 [2008]; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007]).

Accordingly, the motion by defendants Lucche O. Tineo and Victor M. Perez for summary judgment dismissing the complaint as to plaintiff Bernardo Rodriguez is granted to the extent of finding for all purposes in this action (see CPLR 3212 [g]) that plaintiff did not suffer a serious injury under the 90/180-day category.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: February 20, 2009