Almonte v Harrigan

[*1] Almonte v Harrigan 2007 NY Slip Op 50341(U) [14 Misc 3d 140(A)] Decided on March 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, KLEIN HEITLER, JJ
570673/06.

Gilberto Almonte and Fidel Castro, Plaintiffs-Respondents,

against

Lionel Harrigan, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), dated April 7, 2006, which denied his motion for summary judgment dismissing the complaint as it pertains to plaintiff Gilberto Almonte.

PER CURIAM:

Order (Joan M. Kenney, J.), dated April 7, 2006, reversed, with $10 costs, defendant's motion granted, and the complaint of plaintiff Gilberto Almonte is dismissed. The Clerk is directed to enter judgment accordingly.

Defendant met his initial burden of establishing that plaintiff Almonte did not suffer serious injury (see Insurance Law §5102[d]) through the submission of medical proof that Almonte had full range of motion, and an affirmed radiologist report indicating that plaintiff had "marked disc degeneration" of the lumber spine, unrelated to subject motor vehicle accident. In opposition, Almonte did not address defendant's showing of a preexisting degenerative condition, and thus failed to raise a triable issue as to causation (see Mullings v. Huntwork, 26 AD3d 214 [2006]; Jimenez v. Rojas, 26 AD3d 256 [2006]).

This constitutes the decision and order of the court. [*2]
Decision Date: March 5, 2007