Perez v Giouroukos

Perez v Giouroukos 2010 NY Slip Op 06220 [75 AD3d 488] July 27, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2010

Delfy Perez, Respondent,
v
George Giouroukos et al., Appellants.

—[*1] Cohen Kuhn & Associates, New York (Steven Balson-Cohen of counsel), for George Giouroukos and Stark Aquarium, appellants.

Thomas Torto, New York (Jason Levine of counsel), for Augustin Puntiel, appellant.

O'Connor, Redd, LLP, White Plains (John P. Grill of counsel), for respondent.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered September 11, 2009, which denied defendants' motions for summary judgment, unanimously reversed, on the law, without costs, the motions granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendants' medical evidence established that plaintiff did not suffer a serious injury causally related to the accident. Their radiologist opined that the herniated discs in plaintiff's lumbar and cervical spine were degenerative and preexisting, and thus not caused by the June 2006 automobile accident. In response, plaintiff's medical expert, while noting that the herniated discs shown on the MRI correlated to his range-of-motion and other studies, failed to address or rule out injury from a preexisting degenerative condition, or to offer competent medical proof that plaintiff could not perform substantially all of her normal activities for 90 of the first 180 days following the accident (see Valentin v Pomilla, 59 AD3d 184 [2009]). Concur—Andrias, J.P., Saxe, Friedman, Nardelli and Acosta, JJ.