Wetzel v Santana

Wetzel v Santana 2011 NY Slip Op 08279 Decided on November 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2011
Gonzalez, P.J., Tom, Catterson, Richter, Román, JJ.
6071 13468/06

[*1]Gerhard Wetzel, et al., Plaintiffs-Appellants,

v

Juan Santana, et al., Defendants-Respondents.




Law Offices of Andrew J. Spinnell, LLC, New York (Andrew J.
Spinnell of counsel), for appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered March 23, 2010, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained when plaintiff pedestrian Gerhard Wetzel was struck by defendants' vehicle as he crossed the street, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law by presenting evidence showing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d). Defendants submitted the affirmed report of an orthopedist who examined plaintiff and found that he had normal ranges of motion in his cervical spine and that the limited ranges of motions in his lumbar spine were related to his age (see Torres v Triboro Servs., Inc., 83 AD3d 563 [2011]).

In opposition, plaintiff did not raise a triable issue of fact. Plaintiff failed to submit competent medical evidence showing either recent or contemporaneous range of motion testing. Accordingly, he failed to demonstrate a causal connection between his injuries and the accident (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446 [2009]). Although the unaffirmed report of the MRI performed upon plaintiff in November 2006 revealed the presence of herniated discs in the cervical spine, the mere existence of "bulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury" (DeJesus v Paulino, 61 AD3d 605, 608 [2009]). The MRI also fails to support plaintiff's claims since it was taken more than two years after the accident.

Furthermore, plaintiffs' bill of particulars, wherein he alleged that he was confined to bed for two to three days after the accident, is fatal to the claim under the 90/180-day category of Insurance Law § 5102(d) (see Lopez v Eades, 84 AD3d 523 [2011]).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: NOVEMBER 17, 2011

CLERK