Mccree v. Sam Trans Corp..

• Decision Date: 24 March 2011
• Parties: Ethel McCREE, Plaintiff–Appellant,v.SAM TRANS CORP., Defendant–Respondent.“John Doe”, Defendant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 601

920 N.Y.S.2d 35

2011 N.Y. Slip Op. 02125

Ethel McCREE, Plaintiff–Appellant,

v.SAM TRANS CORP., Defendant–Respondent.“John Doe”, Defendant.

Supreme Court, Appellate Division, First Department, New York.

March 24, 2011.

Mirman Markovits & Landau, P.C., New York (Ephrem J. Wertenteil of counsel), for appellant.Baker, McEvoy, Morrissey & Moskovitz, P.C., New York (Stacy R. Seldin of counsel), for respondent.GONZALEZ, P.J., CATTERSON, RICHTER, ABDUS–SALAAM, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Lucy Billings, J.), entered October 30, 2009, which granted defendant Sam Trans Corp.'s motion for summary judgment dismissing the complaint on the threshold issue of “serious injury” within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's “permanent consequential limitation” and “significant limitation” claims, and otherwise affirmed, without costs.

Defendant failed to satisfy its burden of demonstrating prima facie that no factual issues exist whether plaintiff suffered an injury that caused “consequential limitation” and “significant limitation.” While its medical expert attributed the range of motion restrictions he found in plaintiff's right shoulder and cervical spine to degenerative changes or a pre-existing condition, his opinion lacked a factual basis and was conclusory ( see Frias v. James, 69 A.D.3d 466, 895 N.Y.S.2d 335 [2010]; Torres v. Knight, 63 A.D.3d 450, 880 N.Y.S.2d 277 [2009] ).

However, defendant demonstrated the absence of factual issues as to plaintiff's 90/180–day claim by submitting plaintiff's deposition testimony that she was unable to leave her home for about a week following the accident. Plaintiff's affidavit testimony that she was confined to her home for the first five months following the accident appears to have been tailored to avoid the consequences of her deposition testimony and is therefore insufficient to raise an issue of fact as to the duration of her nonpermanent injuries ( see Alloway v. Rodriguez, 61 A.D.3d 591, 592, 877 N.Y.S.2d 325 [2009] ).