Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 25, 2009, which granted defendants' motion for summary judgment dismissing the complaint for lack of a serious injury, unanimously modified, on the law, the motion denied and the complaint reinstated only to the extent of the 90/180 claim, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered July 27, 2009, which denied plaintiff's motion to renew the motion for summary judgment, unanimously dismissed, without costs, as academic in view of the foregoing.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Friedman, J.P., Catterson, Acosta, DeGrasse, Abdus-Salaam, JJ.
The reports of defendants' experts based on examinations performed more than three years after the subject accident and addressed only to the permanency of plaintiff's injuries fail to make a prima facie showing that plaintiff did not sustain a 90/180 injury (see Loesburg v Jovanovic, 264 AD2d 301 ; Alexandre v Dweck, 44 AD3d 597 ). Nor did defendants submit any other evidence, such as deposition testimony, tending to show that plaintiff did not sustain such an injury. However, with respect to plaintiff's claims of permanent and significant limitations, her experts failed to sufficiently respond to defendant's evidence and hence Supreme Court properly granted summary judgment on those claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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