Samedy v Sanabria

[*1] Samedy v Sanabria 2010 NY Slip Op 50230(U) [26 Misc 3d 138(A)] Decided on February 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570772/09.

Briack Samedy, Plaintiff-Respondent,

against

Jose Sanabria, Defendant, -and- Anthony Gallina and Rosalia Gallina, Defendants-Appellants.

Defendants Anthony Gallina and Rosalia Gallina appeal from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), dated June 22, 2009, which denied their motion for summary judgment dismissing the complaint as against them.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), dated June 22, 2009, reversed, with $10 costs, motion of defendants Anthony Gallina and Rosalia Gallina and cross motion of defendant Jose Sanabria granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendants Anthony Gallina and Rosalia Gallina made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Those defendants submitted reports of doctors who examined plaintiff and found that he had normal ranges of motion in his spine and had fully recovered from soft tissue injuries sustained in the subject motor vehicle accident. Those defendants also submitted the report of a radiologist who reviewed MRI films of plaintiff's spine and described degenerative and congenital spinal abnormalities unrelated to the accident (see e.g. Lopez v Abdul-Wahab, 67 AD3d 598 [2009]; Taylor v Vasquez, 58 AD3d 406 [2009]).

In opposition, plaintiff, who advances on appeal only his claim under the 90/180-day category, failed to raise a triable issue. Plaintiff testified at his deposition that he was never confined to his home following the accident, and he failed to identify any daily activities impaired by his alleged injuries (see Lopez v Abdul-Wahab, supra). Moreover, plaintiff's claimed inability to work for more than 90 days following the accident does not, standing alone, raise a triable issue on the 90/180-day claim, and that alleged inability was unsubstantiated by any medical evidence suggesting that he could not work (see Ortiz v Ash Leasing Corp., 63 AD3d 556 [2009]). Plaintiff also failed to address the findings of preexisting degenerative disease made by defendants' radiologist. [*2]

Although defendant Sanabria did not file a notice of appeal from the denial of his cross motion for summary judgment, we search the record and grant him summary judgment, since plaintiff cannot meet the threshold for serious injury (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 17, 2010