The plaintiff has failed to proffer competent medical evidence that he sustained a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
At his deposition, the plaintiff acknowledged that he missed less than 90 days of work as a result of the subject motor vehicle accident; specifically, he acknowledged that he missed seven to eight weeks from work. To establish this prong of the statute, plaintiff’s doctor would have had to inform him that he could not return to work-that is the prerequisite for a medically determined injury. There is no such evidence in any of his medical reports. The important element in establishing injury under the 90/180 day category is that the injury be medically determined. Absent some objective proof of disability to perform the activities of daily living for 90 out of 180 days following an accident, there is no showing of a serious injury from mere allegation. Plaintiff also contends that he has suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system.
Plaintiff has overcome the motion with regard to these two categories of injury. The radiologists, of course, have no opinion on the issue of causation. The doctors set forth the requisite language establishing their opinion that plaintiff’s injuries were caused by the accident. Plaintiff testified at his EBT to visiting his primary care physician, several times each year through 2007 to the present and presumably prior to 2007 but there is no affirmation from him. His opinion on the issue of causation would be helpful, but it is not necessary.
Plaintiff returned to work as a limo driver 6-8 weeks after the accident and is still working. He complains he still experiences pain. The plaintiff has demonstrated significant restrictions in the range of motion of his left knee and his cervical and lumbar spine. As such, he has overcome the motion with regards to whether he has suffered a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system, and has raised a triable issue of fact as to these two prongs of the statute.
In opposition to the motion for summary judgment, the plaintiff has presented ample evidence of specific and documented restrictions in his ranges of motion, both from a recent examination by his doctor and from tests which were contemporaneous with the subject accident. He has also adequately addressed the issue of the prior accidents. The evaluation of competing evidence (the battle of the experts) falls within the province of the trier of fact at trial, and it is not appropriate for the Court to dismiss the complaint on a motion for summary judgment.
The Court finds that the evidence submitted by the plaintiff has raised a triable issue of fact with regard to the categories of 1) permanent consequential limitation of use of a body organ or member; and 2) a significant limitation of use of a body function or system. The Court finds that plaintiff has provided an adequate explanation for his gap in treatment, if there is in fact a gap. After four months of treatments, he became the primary caregiver for his mother. He sees his primary care physician and his orthopedist on an as-needed basis, approximately once per month.
For the reasons set forth herein, the defendants’ motion is denied.