Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 30, 2008, deemed from a judgment of the same court entered August 12, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 30, 2008 order granting defendant's motion for summary judgment, dismissed the complaint.

Judgment reversed without costs, order entered May 30, 2008 vacated, and defendant's motion for summary judgment granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not satisfy the threshold requirement of suffering a serious injury under the 90/180-day category.

Plaintiff commenced this action to recover for serious injuries she allegedly sustained in a motor vehicle accident. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff opposed the motion. By order entered May 30, 2008, the Civil Court granted defendant's motion, finding that defendant had made a prima facie case and plaintiff had failed to raise a triable issue in opposition. Plaintiff appeals from the order, which appeal is deemed to be from the judgment that was subsequently entered pursuant to the order (see CPLR 5501 [c]).

Defendant failed to establish, prima facie, that the injured plaintiff did not sustain a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The papers submitted by defendant in support of his motion for summary judgment included the affirmed medical report of his examining orthopedist, which showed the existence of limitations in the range of motion of plaintiff's lumbar spine (see Powell v Prego, 59 AD3d 417 [2009]; Cassandra v Dumond, 31 AD3d 476 [2006]). The bare conclusory opinion of defendant's orthopedist that [*2]the "decreased ranges of motion are not accident related" is insufficient (see Sullivan v Johnson, 40 AD3d 624 [2007]). Indeed, the affirmed report prepared by the orthopedist actually identified a triable issue of fact (see CPLR 3212 [b]) as to whether plaintiff had suffered a serious injury (see O'Shea v Johnson, 49 AD3d 614 [2008]).

However, defendant made a prima facie showing as to the 90/180-day category of serious injury by submitting the certified transcript of plaintiff's own deposition testimony and plaintiff's verified bill of particulars, in which plaintiff stated that she had been confined to her home for approximately one month immediately following the accident and that she had then returned to her job (see Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 [2008]; Sherwood v Ragnauth, 19 Misc 3d 138[A], 2008 NY Slip Op 50870[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiff's admissible medical submissions were insufficient to raise a triable issue of fact as to whether plaintiff had sustained a medically determined injury of a nonpermanent nature which had prevented her from performing her usual and customary activities for 90 of the 180 days immediately following the accident in question (see Sorto v Morales, 55 AD3d 718 [2008]; Casas v Montero, 48 AD3d 728 [2008]).

Accordingly, the judgment is reversed, the order is vacated, and 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 did not satisfy the threshold requirement of suffering a serious injury under the 90/180-day category.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009