Blanco v Peterson

[*1] Blanco v Peterson 2007 NY Slip Op 50155(U) [14 Misc 3d 134(A)] Decided on January 31, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 31, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ
570507/06.

Ana Silvia Blanco, Plaintiff-Appellant,

against

Dawn Peterson, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered March 10, 2006, which granted defendant's motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Ben R. Barbato, J.), entered March 10, 2006, affirmed, without costs.

In opposition to defendant's prima facie showing of entitlement to summary judgment on the threshold serious injury issue (see Insurance Law §5102[d]), plaintiff failed to submit evidence in admissible form sufficient to raise a triable issue of fact (see Offman v. Singh, 27 AD3d 284 [2006]; Simms v. APA Truck Leasing Corp., 14 AD3d 322 [2005]). Assuming arguendo that the affirmation and report of plaintiff's physician were competent, the physician failed to address plaintiff's preexisting "extensive degenerative disc disease" and "severe" disc narrowing revealed in the CT scan performed at the emergency room on the day of the accident, which defendant's expert opined to be the cause of plaintiff's complaints (see Franchini v. Palmieri, 1 NY3d 536 [2003]). Nor did plaintiff offer a reasonable explanation for her failure to seek treatment for nearly five months after the accident(see Pommells v. Perez, 4 NY3d 566, 574 [2005]; Milazzo v. Gesner, 33 AD3d 317 [2006]).
This constitutes the decision and order of the court.
Decision Date: January 31, 2007