Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered August 20, 2007. The order granted defendant's motion for summary judgment.

Order modified by providing that defendant's motion for summary judgment is granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff Mohammad Ikhitiar Ali did not satisfy the threshold requirement of suffering a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d); as so modified, affirmed without costs.

Plaintiffs commenced this action to recover for serious injuries allegedly sustained by plaintiff Mohammad Ikhitiar Ali in a motor vehicle accident and for plaintiff Tasleem K. Ali's loss of consortium. Plaintiffs' verified bill of particulars claimed that Mr. Ali suffered injuries under, inter alia, the 90/180-day category of Insurance Law § 5102 (d). Defendant moved for summary judgment dismissing the complaint on the ground that Mohammad Ikhitiar Ali did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted the motion, and this appeal by plaintiffs ensued.

Defendant failed to make a prima facie showing that Mr. Ali did not suffer a medically determined injury or impairment of a nonpermanent nature which prevented him 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]). Defendant's medical experts failed to relate their findings to the relevant period. In view of the foregoing, the sufficiency of the opposition papers as to the 90/180-day category need not be considered, as the burden never shifted to plaintiffs with respect [*2]thereto (see Whack v Williams, 53 AD3d 481 [2008]; Parnes v Mitzy Transp., 44 AD3d 918 [2007]).

The affirmed medical reports submitted by defendant in support of her motion for summary judgment, however, made out a prima facie case that Mr. Ali did not sustain a serious injury with regard to the permanent consequential limitation of use and significant limitation of use categories of the statute. The reports noted numeric range of motion findings concerning Mr. Ali's cervical and lumbar spine, compared the findings to normal ranges of motion and established that Mr. Ali had full range of motion in his cervical and lumbar spine (see Kaminski v Kawamoto, 49 AD3d 501 [2008]). Defendant also submitted an affirmed radiologist's report, determining that posterior spurs and disc bulges, which were revealed on films of Mr. Ali's cervical and lumbar spine, were the manifestations of degenerative disc disease. The burden then shifted to plaintiffs to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1995]) as to the permanent consequential limitation of use and significant limitation of use categories.

In opposition, plaintiffs' evidence failed to raise a triable issue of fact with regard to these two categories. Plaintiffs' medical experts failed to address the finding of defendant's expert attributing the condition of Mr. Ali's cervical and lumbar spine to degenerative changes, as noted on the radiology report made approximately 1½ months after the accident. This failure rendered speculative the opinions by plaintiffs' experts that Mr. Ali's cervical and lumbar conditions were caused by the motor vehicle accident (see Johnson v Berger, 56 AD3d 725 [2008]; Cornelius v Cintas Corp., 50 AD3d 1085 [2008]; Giraldo v Mandanici, 24 AD3d 419 [2005]). Consequently, defendant's motion for summary judgment is granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff Mohammad Ikhitiar Ali did not satisfy the threshold requirement of suffering a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: April 03, 2009