Perez v Mastro Concrete, Inc.

[*1] Perez v Mastro Concrete, Inc. 2007 NY Slip Op 51878(U) [17 Misc 3d 127(A)] Decided on October 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 4, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, P.J., SCHOENFELD, HEITLER, JJ
570279/07.

Gladys Perez, Lorenza Herasme and Adriana Herasme, Plaintiffs-Respondents,

against

Mastro Concrete, Inc. and John Doe, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Francis M. Alessandro, J.), entered December 19, 2006, which denied their motion to dismiss the personal injury complaint.

Per Curiam.
Order (Francis M. Alessandro, J.), entered December 19, 2006, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendants established a prima facie entitlement to summary judgment on the threshold "serious injury" issue (Insurance Law §5102[d]) by offering expert medical reports opining that plaintiffs' injuries, if any, were preexisting or degenerative conditions. In opposition, plaintiffs failed to come forward with the objective proof required to raise a triable issue as to whether their alleged injuries, assuming they met the serious injury threshold, were caused by the underlying motor vehicle accident. Plaintiffs' treating physician failed to address defendants' showing that the abnormalities shown on MRI films were longstanding degenerative conditions and non-traumatic in origin (see Flores v Leslie, 27 AD3d 220 [2006]; Mullings v Huntwork, 26 AD3d 214 [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 4, 2007