Nickolson v. Albishara

Appellate Division of the Supreme Court of New York

Nickolson v. Albishara

61 A.D.3d 542, 877 N.Y.S.2d 67

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

DecidedApril 21, 2009

StatusPublished

Cited by3 cases

This text of 61 A.D.3d 542 (Nickolson v. Albishara) 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

Nickolson v. Albishara, 61 A.D.3d 542, 877 N.Y.S.2d 67 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 24, 2008, which, insofar as appealed from, denied defendants-appellants’ motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against all defendants.

Plaintiffs expert radiologist failed to address, let alone rebut, defendants’ radiologist’s nonconclusory finding that plaintiffs disc bulges and herniations were caused by a preexisting degenerative condition, or even to relate the disc bulges and herniations to the accident; accordingly, plaintiff fails to raise an issue of fact as to whether his alleged injuries were caused by the accident (see Delfino v Luzon, 60 AD3d 196, 198 [2009]; Valentin v Pomilla, 59 AD3d 184, 185 [2009]). It does not avail plaintiff for his attorney to assert that defendants’ radiologist’s findings of preexisting conditions “is unfounded and not based on any medically conclusive findings, as she did not review any prior MRI films, or ever physically examine the plaintiff, or review any of plaintiffs medical records” (cf. Ramirez v Miller, 29 AD3d 310, 314 [2006]). We dismiss the complaint as against [543]*543all defendants upon a search of the record pursuant to CPLR 3212 (b) (see Lopez v Simpson, 39 AD3d 420 [2007]).

Motion seeking stay of trial dismissed as moot. Concur— Andrias, J.E, Nardelli, McGuire, Acosta and DeGrasse, JJ.

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Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 24, 2008, which, insofar as appealed from, denied defendants-appellants’ motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against all defendants.

Plaintiffs expert radiologist failed to address, let alone rebut, defendants’ radiologist’s nonconclusory finding that plaintiffs disc bulges and herniations were caused by a preexisting degenerative condition, or even to relate the disc bulges and herniations to the accident; accordingly, plaintiff fails to raise an issue of fact as to whether his alleged injuries were caused by the accident (see Delfino v Luzon, 60 AD3d 196, 198 [2009]; Valentin v Pomilla, 59 AD3d 184, 185 [2009]). It does not avail plaintiff for his attorney to assert that defendants’ radiologist’s findings of preexisting conditions “is unfounded and not based on any medically conclusive findings, as she did not review any prior MRI films, or ever physically examine the plaintiff, or review any of plaintiffs medical records” (cf. Ramirez v Miller, 29 AD3d 310, 314 [2006]). We dismiss the complaint as against [543]*543all defendants upon a search of the record pursuant to CPLR 3212 (b) (see Lopez v Simpson, 39 AD3d 420 [2007]).

Motion seeking stay of trial dismissed as moot. Concur— Andrias, J.E, Nardelli, McGuire, Acosta and DeGrasse, JJ.

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Bluebook (online)

61 A.D.3d 542, 877 N.Y.S.2d 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nickolson-v-albishara-nyappdiv-2009.

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