Mena v. White City Car & Limo Inc.

117 A.D.3d 441, 985 N.Y.S.2d 234

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about December 24, 2012, which granted defendants’ motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants made a prima facie showing with respect to plaintiff’s claims of injury to his neck, back and shoulder by submitting a radiologist’s affirmed reports asserting that plaintiff’s injuries were degenerative in nature (see Arroyo v Morris, 85 AD3d 679, 680 [1st Dept 2011]). Defendants’ experts were not required to review plaintiffs medical records before forming their opinions (see Levinson v Mollah, 105 AD3d 644, 644 [1st Dept 2013]).

In opposition, plaintiff failed to refute, or address, defendants’ evidence of preexisting degenerative conditions of his cervical and lumbar spine and left shoulder. Further, plaintiffs own radiologists noted degenerative conditions in their MRI reports, but failed to explain why this was not the cause of plaintiffs injuries (see Paduani v Rodriguez, 101 AD3d 470, 471 [1st Dept 2012]).

Defendants met their burden as to the 90/180-day claim by relying on plaintiff’s bill of particulars alleging that he was confined to bed for about one week, and his testimony that he was home from work for only five days (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 522-523 [1st Dept 2010]). In opposition, plaintiff failed to submit evidence sufficient to raise an issue of fact.

We have considered plaintiffs remaining contentions and find them unavailing.

Concur—Gonzalez, EJ., Mazzarelli, Sweeny, Manzanet-Daniels and Clark, JJ.