Wyjnerman v Sarker

[*1] Wyjnerman v Sarker 2009 NY Slip Op 51828(U) [24 Misc 3d 145(A)] Decided on August 24, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570257/09.

Andy Wyjnerman and Frith Artie McDonald, Plaintiffs-Respondents,

against

Nikhil C. Sarker, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered November 28, 2008, which denied his motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered November 28, 2008, reversed, with $10 costs, motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

In opposition to defendant's prima facie showing that plaintiff McDonald did not sustain a serious injury as a result of the subject motor vehicle accident (see Insurance Law § 5102[d]), plaintiff McDonald's medical experts failed to address the opinion of defendant's radiologist that McDonald had preexisting degenerative conditions in his neck and shoulder (see Eichinger v Jone Cab Corp., 55 AD3d 364 [2008]).

Similarly, plaintiff Wyjnerman did not rebut defendant's evidence of multilevel cervical disc degeneration (see Delfino v Luzon, 60 AD3d 196 [2009]). Nor did plaintiff Wyjnerman submit evidence of contemporaneous or significant restrictions of his lumbar spine. While it may be that seven months after the accident a treating doctor reported positive straight leg raising and restriction of a single plane of lumbar motion, that doctor did not reconcile his assertions with the finding of another treating physician in the near aftermath of the accident that plaintiff's lumbar movement met or exceeded normal limits (see Valentin v Pomilla, 59 AD3d 184 [2009]; Migliaccio v Miruku, 56 AD3d 393 [2008]).

In the absence of objective medical evidence that their injuries were caused by the accident, plaintiffs also failed to establish a 90/180-day claim. Moreover, plaintiffs acknowledged at deposition that they each missed no more than one week of work and failed to offer any evidence that they could not perform substantially all of their daily activities for the requisite period (see Valentin v Pomilla, 59 AD3d at 186-187).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 24, 2009