Opinion
2012-11-15
Rajnarine RAMPERSAUD, Plaintiff–Respondent, v. Ann T. ELJAMALI, Defendant–Appellant.
Martin, Fallon & Mullé, Huntington (Stephen P. Burke of counsel), for appellant. Law Offices of Richard M. Altman, Bronx (Alice Charles of counsel), for respondent.
Martin, Fallon & Mullé, Huntington (Stephen P. Burke of counsel), for appellant. Law Offices of Richard M. Altman, Bronx (Alice Charles of counsel), for respondent.
FRIEDMAN, J.P., CATTERSON, RENWICK, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 6, 2012, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d). The Clerk is directed to enter judgment dismissing the complaint.
The reports of defendant's expert orthopedist and radiologist established prima facie that plaintiff's injuries were not permanent or significant because they had resolved and plaintiff had full range of motion in his cervical and lumbar spine ( see Porter v. Bajana, 82 A.D.3d 488, 918 N.Y.S.2d 414 [1st Dept. 2011] ). Moreover,the radiologistaffirmed that plaintiff suffered from a preexisting degenerative condition, unrelated to trauma ( id.).
In opposition, plaintiff failed to raise a triable issue of fact. The MRI reports, chiropractor report, and medical records were in inadmissible form and therefore lacked probative value ( see Quinones v. Ksieniewicz, 80 A.D.3d 506, 506, 915 N.Y.S.2d 70 [1st Dept. 2011] ). The medical expert's report, to the extent admissible, failed to raise a triable issue of fact as to causation, since the expert did not explain why plaintiff's prior injuries and degenerative condition were ruled out as the cause of his current alleged limitations ( see Pommells v. Perez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];Jimenez v. Polanco, 88 A.D.3d 604, 931 N.Y.S.2d 304 [1st Dept. 2011] ). Absent evidence that plaintiff's injuries were caused by the subject accident, his 90/180–day claim fails ( see Jimenez, 88 A.D.3d at 604, 931 N.Y.S.2d 304).
Given the lack of serious injury, the issue of liability is academic ( see Hernandez v. Adelango Trucking, 89 A.D.3d 407, 408, 931 N.Y.S.2d 317 [1st Dept. 2011] ).