Fitzroy v Boothe

[*1] Fitzroy v Boothe 2010 NY Slip Op 51876(U) [29 Misc 3d 130(A)] Decided on November 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570313/08.

Higginson Fitzroy, Plaintiff-Respondent,

against

Raymond Boothe, Defendant-Appellant, -and- Elver Cromwell and Parker David Davone, Defendants.

Defendant Raymond Boothe, as limited by his briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered December 11, 2007, which denied his motion for summary judgment dismissing the complaint as against him.

Per Curiam.

Order (Raul Cruz, J.), entered December 11, 2007, insofar as appealed from, reversed, with $10 costs, motion of defendant Raymond Boothe granted, the complaint dismissed as against him, and, upon a search of the record, the complaint dismissed as against defendants Elver Cromwell and Parker David Davone. The Clerk is directed to enter judgment dismissing the complaint in its entirety.

Defendant Boothe made a prima facie showing that plaintiff did not sustain a serious injury (see Insurance Law § 5102[d]) in the subject automobile accident through plaintiff's own deposition testimony, and the affidavit of a medical expert who examined plaintiff and quantified full and normal ranges of motion in plaintiff's spine and extremities, offered a qualitative assessment of plaintiff's orthopedic functioning and opined that plaintiff's reported disc abnormalities were preexisting.

Contrary to defendant Boothe's contention, plaintiff's medical evidence was admissible, since the affirmed reports of plaintiff's and defendants' examining doctors each referenced the MRI, EMG and initial evaluation report of Doctors Velazquez and Gutstein (see Mercado-Arif v [*2]Garcia, 74 AD3d 446 [2010]; Amamedi v Archibala,70 AD3d 449 [2010]; see generally Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]). However, plaintiff failed to raise a triable issue as to whether a causal connection exists between the accident and plaintiff's alleged injuries (see Kerr v Klinger, 71 AD3d 593 [2010]). Plaintiff's expert physician failed to offer a sufficient explanation for plaintiff's three-year gap in treatment (see Barner v Shahid, 73 AD3d 593 [2010]; Cekic v Zapata, 69 AD3d 464 [2010]). Nor did plaintiff's expert address defendant's expert's opinion that plaintiff's alleged disc abnormalities were preexisting (see Barner, supra; Reyes v Brito, 57 AD3d 395 [2008]; Johnson v Paulino, 49 AD3d 379 [2008]).

Additionally, no triable issue exists on plaintiff's claim of injury under the 90/180-day serious injury category (see generally Ortiz v Ash Leasing Corp., 63 AD3d 556 [2009]).

Upon searching the record, we grant defendants Cromwell and Davone summary judgment dismissing the complaint as against them, since plaintiff cannot meet the threshold for serious injury (see generally Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 04, 2010