Arroyo v Morris

Arroyo v Morris 2011 NY Slip Op 05624 Decided on June 30, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 30, 2011
Andrias, J.P., Saxe, Moskowitz, Richter, Manzanet-Daniels, JJ.
4843 6379/07

[*1]Dennis Arroyo, Plaintiff-Appellant,

v

Horace Morris, Defendant, Juldeh Bah, et al., Defendants-Respondents.



 
Law Office of Mark S. Gray, New York (William Ricigliano
and Mark S. Gray of counsel), for appellant.
Baker McEvoy Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 19, 2010, which granted defendants Juldeh Bah and Nigeriya Car's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants-appellants established prima facie that plaintiff did not sustain a serious injury by submitting a radiologist's affirmed reports stating that the MRI films of the lumbar spine revealed evidence of degenerative disc disease predating the accident and no evidence of recent traumatic or causally related injury, and that the MRI films of the left knee revealed evidence of a preexisting chronic condition and no radiographic evidence of recent traumatic or causally related injury (see Valentin v Pomilla, 59 AD3d 184, 186 [2009]). In opposition, plaintiff failed to refute defendants' evidence of a preexisting degenerative condition of the lumbar spine or a preexisting chronic condition of the left knee, and therefore failed to raise an inference that injury to either the spine or the knee was caused by the accident (see id.; see also Jimenez v Rojas, 26 AD3d 256 [2006]; Diaz v Anasco, 38 AD3d 295 [2007]). Further, none of plaintiff's doctors made any reference to either the degenerative or the chronic condition; without an explanation for ruling out these conditions as the cause of plaintiff's injuries, the doctors' opinions that the injuries were caused by the accident are speculative (see Valentin, 59 AD3d at 186).

As there is no objective medical evidence that plaintiff's injuries were caused by the accident, plaintiff's statement that he was out of work for nine months is insufficient to establish his 90/180-day claim (see Linton v Nawaz, 62 AD3d 434, 443
[2009], affd 14 NY3d 821 [2010]; see also Hutchinson v Beth Cab Corp., 207 AD2d 283 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER [*2]
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 30, 2011

CLERK