Davis v Giria

Davis v Giria 2007 NY Slip Op 03850 [40 AD3d 272] May 3, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Shawn Davis, Appellant,
v
Manuel Giria et al., Respondents.

—[*1] Jay S. Hausman & Associates, P.C., Hartsdale (Jay S. Hausman of counsel), for appellant.

Cheven, Keely & Hatzis, Esqs., New York (Mayu Miyashita of counsel), for Manuel Giria and Kenneth D. Weiler, respondents.

Fiedelman & McGaw, Jericho (Dawn C. DeSimone of counsel), for Allen Brewer, respondent.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about March 9, 2006, which granted defendant Giria's motion for summary judgment dismissing the complaint as against all defendants, unanimously affirmed, without costs.

Even if an issue of fact were raised as to whether plaintiff's alleged injuries are "serious" as that term is defined in Insurance Law § 5102 (d), the grant of summary judgment dismissing the complaint was correct in light of the persuasive and essentially uncontradicted evidence adduced by defendants showing that the injuries at issue are attributable, not to the alleged automobile accident, but to a preexisting degenerative condition (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Diaz v Anasco, 38 AD3d 295 [2007]). Concur—Friedman, J.P., Marlow, Sullivan, Sweeny and Catterson, JJ.