Ginty v. MacNamara

300 A.D.2d 624, 751 N.Y.S.2d 790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered March 25, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants submitted the sworn medical reports of their examining medical experts which established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; McCauley v Ross, 298 AD2d 506). In opposition to the motion, the plaintiff submitted the opinion of his examining physician that the plaintiff was suffering from restriction of motion in his cervical spine. However, the plaintiff’s expert failed to indicate his awareness that the plaintiff was suffering from chronic degenerative disc disease, and therefore, his finding that the plaintiffs current restriction of motion was causally related to the subject accident was mere speculation (see Narducci v McRae, 298 AD2d 443; Kallicharan v Sooknanan, 282 AD2d 573, 574; Waaland v Weiss, 228 AD2d 435). Furthermore, the plaintiff failed to explain a significant gap in treatment (see Crespo v Kramer, 295 AD2d 467; Mejia v Thom, 280 AD2d 528; Borino v Little, 273 AD2d 262).

The plaintiffs submissions did not raise a triable issue of fact (see Toure v Avis Rent A Car Sys., supra; Keena v Trappen, 294 AD2d 405). Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Altman, J.P., S. Miller, McGinity, Schmidt and Rivera, JJ., concur.