Lall v Ali

Lall v Ali 2012 NY Slip Op 08413 Decided on December 6, 2012 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 December 6, 2012
Gonzalez, P.J., Sweeny, Richter, Román, Clark, JJ.
8724 21763/04

[*1]Roopnarine Lall, Plaintiff, Jean Ramsaroop Lall, Plaintiff-Respondent,

v

Danny Ali, et al., Defendants-Appellants, Wieslaw Kalemba, Defendant-Respondent.




Marjorie E. Bornes, Brooklyn, for appellants.
Litman & Litman, P.C., East Williston (Jeffrey Litman of
counsel), for Jean Ramsaroop Lall, respondent.
Law Offices of Karen L. Lawrence, Tarrytown (David Holmes
of counsel), for Wieslaw Kalemba, respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered February 1, 2011, which, to the extent appealed from as limited by the briefs, denied defendants Ali and Hassan's motion for summary judgment dismissing plaintiff Jean Ramsaroop Lall's claim of serious injury of a nonpermanent nature under Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted, and, upon a search of the record, defendant Kalemba's motion for summary judgment dismissing Jean Ramsaroop Lall's complaint as against him is granted. The Clerk is directed to enter judgment in defendants' favor dismissing Jean Ramsaroop Lall's complaint.

The record demonstrates that plaintiff Jean Ramsaroop Lall did not sustain a serious injury of a nonpermanent nature (Insurance Law § 5102[d]). Defendants' radiologist opined that plaintiff's alleged lumbar spine injuries were degenerative and not related to the accident, and, in opposition, plaintiff failed to refute that evidence (see Reyes v Esquilin, 54 AD3d 615 [1st Dept 2008]). Even if the radiologist and physician's unaffirmed reports plaintiff submitted are properly considered, they are insufficient to raise an issue of fact. The radiologist did not address causation, and the physician's opinion was too general (see Winters v Cruz, 90 AD3d 412 [1st Dept 2011]). [*2]

Because plaintiff cannot meet the serious injury threshold against the appealing defendants, she cannot meet it against the nonappealing defendant (see Lopez v Simpson, 39 AD3d 420 [1st Dept 2007]).

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

ENTERED: DECEMBER 6, 2012

CLERK