Kerr v. Klinger

Appellate Division of the Supreme Court of New York

Kerr v. Klinger

71 A.D.3d 593, 896 N.Y.S.2d 868

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 30, 2010

StatusPublished

Cited by8 cases

This text of 71 A.D.3d 593 (Kerr v. Klinger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kerr v. Klinger, 71 A.D.3d 593, 896 N.Y.S.2d 868 (N.Y. Ct. App. 2010).

Pincite

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered April 1, 2009, which granted defendant’s motion for summary judgment dismissing the complaint for lack of a serious injury, unanimously affirmed, without costs.

Defendant established her prima facie entitlement to summary judgment by submitting evidence, including the affirmed reports of a radiologist, who, upon reviewing the MRI films taken after plaintiffs accident, concluded that the disc bulges and/or herniations revealed therein were the result of degenerative disc disease and not caused by the automobile accident at issue (see D’Ariano v Meldish, 68 AD3d 640 [2009]; Lopez v American United Transp., Inc., 66 AD3d 407 [2009]).

In opposition, plaintiffs expert provided insufficient evidence to raise an issue of fact as to a causal connection between accident and injury (see Lopez, 66 AD3d 407 [2009]). Plaintiff also failed to raise triable issues of fact as to whether he was incapacitated from performing substantially all of his usual and customary activities for at least 90 of the first 180 days after the accident, having failed to offer the requisite competent medical proof to substantiate his claim (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Moses v Gelco Corp., 63 AD3d 548 [2009]). Concur—Saxe J.P., Catterson, Moskowitz, Freedman and Román, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Paul Wooten, J.), entered April 1, 2009, which granted defendant’s motion for summary judgment dismissing the complaint for lack of a serious injury, unanimously affirmed, without costs.

Defendant established her prima facie entitlement to summary judgment by submitting evidence, including the affirmed reports of a radiologist, who, upon reviewing the MRI films taken after plaintiffs accident, concluded that the disc bulges and/or herniations revealed therein were the result of degenerative disc disease and not caused by the automobile accident at issue (see D’Ariano v Meldish, 68 AD3d 640 [2009]; Lopez v American United Transp., Inc., 66 AD3d 407 [2009]).

In opposition, plaintiffs expert provided insufficient evidence to raise an issue of fact as to a causal connection between accident and injury (see Lopez, 66 AD3d 407 [2009]). Plaintiff also failed to raise triable issues of fact as to whether he was incapacitated from performing substantially all of his usual and customary activities for at least 90 of the first 180 days after the accident, having failed to offer the requisite competent medical proof to substantiate his claim (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Moses v Gelco Corp., 63 AD3d 548 [2009]). Concur—Saxe J.P., Catterson, Moskowitz, Freedman and Román, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

71 A.D.3d 593, 896 N.Y.S.2d 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-v-klinger-nyappdiv-2010.

Opinion

Related

Cite This Page — Counsel Stack