McCree v. Sam Trans Corp.

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 plaintiffs 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 AD3d 466 [2010]; Torres v Knight, 63 AD3d 450 [2009]). However, defendant demonstrated the absence of factual issues as to plaintiffs 90/180-day claim by submitting plaintiffs 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 AD3d 591, 592 [2009]). Concur — Gonzalez, P.J., Catterson, Richter, Abdus-Salaam and Román, JJ.