Marsh v. City of New York

Appellate Division of the Supreme Court of New York

Marsh v. City of New York

61 A.D.3d 552, 877 N.Y.S.2d 65

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

DecidedApril 21, 2009

StatusPublished

Cited by6 cases

This text of 61 A.D.3d 552 (Marsh v. City of New York) 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

Marsh v. City of New York, 61 A.D.3d 552, 877 N.Y.S.2d 65 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 18, 2008, which, insofar as appealed from as limited by the briefs, denied defendants-appellants’ motion for summary judgment dismissing the complaint for lack of a serious injury under the No-Fault Law, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of all defendants, dismissing the complaint in its entirety.

Defendants met their burden of establishing lack of causation by their expert’s opinion that plaintiffs injuries were degenerative. The only opinion on causation submitted by plaintiff that was based on admissible evidence, that of his treating chiropractor, failed to address appellants’ nonconclusory expert opinion that plaintiffs allegedly permanent cervical and lumbar conditions are degenerative in nature (see Valentin v Pomilla, 59 AD3d 184, 185 [2009]); indeed, the chiropractor did not purport to provide any reason for his conclusion that such conditions were caused by the accident. Absent evidence sufficient to raise an issue of fact as to causation, plaintiff’s 90/180 claim also lacks merit (see id. at 186). We dismiss the complaint as against all defendants upon a search of the record pursuant to CPLR 3212 (b) (see Rose v City wide Auto Leasing, Inc., 60 AD3d 520 [2009] [as reflected in the record, action dismissed against all defendants, including those who had not moved for summary judgment], citing Lopez v Simpson, 39 AD3d 420, 421 [2007] [action dismissed against nonappealing defendants who had moved for summary judgment]). Concur—Friedman, J.P., Sweeny, Catterson, Renwick and Freedman, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 18, 2008, which, insofar as appealed from as limited by the briefs, denied defendants-appellants’ motion for summary judgment dismissing the complaint for lack of a serious injury under the No-Fault Law, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of all defendants, dismissing the complaint in its entirety.

Defendants met their burden of establishing lack of causation by their expert’s opinion that plaintiffs injuries were degenerative. The only opinion on causation submitted by plaintiff that was based on admissible evidence, that of his treating chiropractor, failed to address appellants’ nonconclusory expert opinion that plaintiffs allegedly permanent cervical and lumbar conditions are degenerative in nature (see Valentin v Pomilla, 59 AD3d 184, 185 [2009]); indeed, the chiropractor did not purport to provide any reason for his conclusion that such conditions were caused by the accident. Absent evidence sufficient to raise an issue of fact as to causation, plaintiff’s 90/180 claim also lacks merit (see id. at 186). We dismiss the complaint as against all defendants upon a search of the record pursuant to CPLR 3212 (b) (see Rose v City wide Auto Leasing, Inc., 60 AD3d 520 [2009] [as reflected in the record, action dismissed against all defendants, including those who had not moved for summary judgment], citing Lopez v Simpson, 39 AD3d 420, 421 [2007] [action dismissed against nonappealing defendants who had moved for summary judgment]). Concur—Friedman, J.P., Sweeny, Catterson, Renwick and Freedman, JJ.

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Bluebook (online)

61 A.D.3d 552, 877 N.Y.S.2d 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-v-city-of-new-york-nyappdiv-2009.

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