Davis v. Giria

40 A.D.3d 272, 833 N.Y.S.2d 392

Opinion

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about March 9, 2006, which granted defendant Giria’s motion for summary judgment dismissing the complaint as against all defendants, unanimously affirmed, without costs.

Even if an issue of fact were raised as to whether plaintiffs alleged injuries are “serious” as that term is defined in Insurance Law § 5102 (d), the grant of summary judgment dismissing the complaint was correct in light of the persuasive and essentially uncontradicted evidence adduced by defendants showing that the injuries at issue are attributable, not to the alleged automobile accident, but to a preexisting degenerative condition (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Diaz v Añasco, 38 AD3d 295 [2007]). Concur—Friedman, J.P., Marlow, Sullivan, Sweeny and Catterson, JJ.