Opinion
No. 3800.
June 3, 2008.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered May 9, 2007, which granted the motion by defendants Rain Hacking Corp. and Ashraf for summary judgment dismissing the complaint of plaintiff's Jackson, Graham and Ruby Page, unanimously affirmed, without costs.
Mallilo Grossman, Flushing (Linda T. Ziatz of counsel), for appellants.
Baker, McEvoy, Morrissey Moskovits, P.C., New York (Holly E. Peck of counsel), for respondents.
Before: Andrias, J.P., Gonzalez, Moskowitz and DeGrasse, JJ.
The moving defendants' prima facie showing of entitlement to summary judgment demonstrated that plaintiff's did not satisfy the serious injury threshold of Insurance Law § 5102 (d). Plaintiff's failed to satisfy their evidentiary burden to submit, in opposition to the motion, "objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal" ( Pommells v Perez, 4 NY3d 566, 574). Although the MRI reports were sufficient to establish the existence of disc bulges and herniations ( Toure v Avis Rent A Car Sys., 98 NY2d 345), plaintiffs' expert attributed present pain to an unquantified loss of range of motion, and did "not report his personal observations of plaintiff[s] while sitting and standing, or identify the tests, if any, he performed," or compare his observations to "the norm" ( Burke v Torres, 8 AD3d 118, 119; compare Garner v Tong, 27 AD3d 401; see also Gonzalez v Vasquez, 301 AD2d 438). With regard to plaintiff Jackson, the physicians failed to address the degenerative nature of his preexisting condition ( Mullings v Huntwork, 26 AD3d 214; see also Montgomery v Pena, 19 AD3d 288).