Opinion
2014-05-6
Hector MENA, Plaintiff–Appellant, v. WHITE CITY CAR & LIMO INC., et al., Defendants–Respondents.
Silvia M. Surdez, P.C., Astoria (Kevin J. Perez of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Silvia M. Surdez, P.C., Astoria (Kevin J. Perez of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
GONZALEZ, P.J., MAZZARELLI, SWEENY, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about December 24, 2012, which granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing with respect to plaintiff's claims of injury to his neck, back and shoulder by submitting a radiologist's affirmed reports asserting that plaintiff's injuries were degenerative in nature ( see Arroyo v. Morris, 85 A.D.3d 679, 680, 926 N.Y.S.2d 488 [1st Dept.2011] ). Defendants' experts were not required to review plaintiff's medical records before forming their opinions ( see Levinson v. Mollah, 105 A.D.3d 644, 644, 963 N.Y.S.2d 653 [1st Dept.2013] ).
In opposition, plaintiff failed to refute, or address, defendants' evidence of preexisting degenerative conditions of his cervical and lumbar spine and left shoulder. Further, plaintiff's own radiologists noted degenerative conditions in their MRI reports, but failed to explain why this was not the cause of plaintiff's injuries ( see Paduani v. Rodriguez, 101 A.D.3d 470, 471, 955 N.Y.S.2d 48 [1st Dept.2012] ).
Defendants met their burden as to the 90/180–day claim by relying on plaintiff's bill of particulars alleging that he was confined to bed for about one week, and his testimony that he was home from work for only five days ( see Williams v. Baldor Specialty Foods, Inc., 70 A.D.3d 522, 522–523, 895 N.Y.S.2d 394 [1st Dept.2010] ). In opposition, plaintiff failed to submit evidence sufficient to raise an issue of fact.
We have considered plaintiff's remaining contentions and find them unavailing.