Santana v. Khan

48 A.D.3d 318, 851 N.Y.S.2d 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2008
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about December 6, 2006, dismissing the complaint on behalf of plaintiff-appellant pursuant to an order that granted defendant’s motion for summary judgment as against plaintiff-appellant for lack of a serious injury as required by Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendant’s medical evidence in support of the motion showed that appellant has normal range of motion in his cervical and lumbar spine and shoulders and that he did not otherwise sustain a serious injury as a result of the accident, and therefore satisfied defendant’s initial burden on the motion “notwithstanding the existence of MRI reports indicating that [appellant] had herniated or bulging discs” (Style v Joseph, 32 AD3d 212, 214 [2006]). Summary judgment was properly granted as appellant’s opposition failed to adduce evidence of a limitation of range based on objective medical findings made within a reasonable time after the accident (see Thompson v Abbasi, 15 AD3d 95, 98-99 [2005]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]). In addition, in response to defendant’s showing of disc dessication and other degenerative findings in appellant’s spinal MRIs, appellant’s expert merely speculated that the injuries were causally related to the subject accident (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]; Diaz v Anasco, 38 AD3d 295, 296 [2007]). Concur—Lippman, P.J., Andrias, Nardelli, Buckley and Acosta, JJ.