Jimenez v Polanco

Jimenez v Polanco 2011 NY Slip Op 07508 Decided on October 25, 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 October 25, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, Richter, JJ.
5835 306785/08

[*1]Sandra Jimenez, Plaintiff-Appellant,

v

Nelson J. Polanco, et al., Defendants-Respondents.




Elefterakis & Elefterakis, P.C., New York (John Elefterakis of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 21, 2010, which, in this action for personal injuries allegedly sustained when plaintiff pedestrian was struck by defendants' motor vehicle, granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law. They submitted the affirmed reports of expert physicians showing that plaintiff's injuries were the result of preexisting and degenerative conditions (see Pommells v Perez, 4 NY3d 566, 580 [2005]). Defendants also submitted evidence showing that plaintiff was involved in another car accident years before the subject accident for which she brought a lawsuit and alleged injuries similar to those set forth in this action (see Becerril v Sol Cab Corp., 50 AD3d 261 [2008]).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's medical evidence did not address the degeneration found by defendants' physicians, and did not purport to explain why the prior accident could be ruled out as the cause of her current alleged limitations (see Moses v Gelco Corp., 63 AD3d 548 [2009]). Furthermore, without evidence that the injuries are related to the accident, "it does not avail plaintiff's 90/180-day claim that defendants' experts did not address [her] condition during the relevant period of time" (Reyes v Esquilin, 54 AD3d 615, 616 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2011 [*2]

CLERK