Caldwell v Singh

[*1] Caldwell v Singh 2010 NY Slip Op 50019(U) [26 Misc 3d 129(A)] Decided on January 11, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570570/09.

Evanda Caldwell, Plaintiff-

against

Amrit Singh, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Lizbeth González, J.), entered June 5, 2009, which denied his motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Lizbeth González, J.), entered June 5, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendant's radiologist reviewed MRI studies of plaintiff's spine and observed preexisting degenerative disease and related conditions (e.g. significant amounts of fat consistent with obesity). Moreover, defendant's neurologist concluded that plaintiff had no neurological disabilities, a conclusion founded upon an examination of plaintiff by the neurologist. In opposition, plaintiff failed to satisfactorily address defendant's evidence tending to show that plaintiff's injuries were associated with preexisting conditions. Plaintiff's experts failed to explain how the alleged injuries to her neck and lower back were related to the accident as opposed to obesity, preexisting degenerative disease or both (see Lopez v American United Transp. Inc., 66 AD3d 407 [2009]; Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Cruz v Aponte, 60 AD3d 431 [2009]; Valentin v Pomilla, 59 AD3d 184 [2009]; see also Charley v Goss, 54 AD3d 569 [2008], affd 12 NY3d 750 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 11, 2010