Thus, Dr. Hausknecht did not, as defendant argues, "merely [take] plaintiff's word" that she had recovered from the injuries sustained in the prior accident. (See Reply Mem. of Law in Further Supp. of Def.'s Mot. for Summ. J. ("Def.'s Reply") 6 (quoting Gentilella v. Board of Educ. of Wantagh Union Free School Dist., 60 A.D.3d 629, 630, 875 N.Y.S.2d 128, 129-30 (2009)); see also Def.'s Response 5 (citing same)). Instead, he confirmed plaintiff's representations that she had been asymptomatic based on objective medial tests performed soon after the accident occurred.
Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under any of those categories, and Supreme Court denied the motion. We reverse. Defendant met his initial burden of establishing that plaintiff did not sustain a serious injury under those four categories by submitting an affirmed examining physician's report stating that, although plaintiff had sustained a cervical strain that had resolved within weeks of the accident, the post-accident MRI films of the cervical spine were unchanged from the prior cervical MRI films taken five years earlier and revealed no objective evidence of a recent traumatic or causally related injury ( see Womack v. Wilhelm, 96 A.D.3d 1308, 1309, 948 N.Y.S.2d 163;Fuentes v. Sanchez, 91 A.D.3d 418, 419, 936 N.Y.S.2d 151;Gentilella v. Board of Educ. of Wantagh Union Free Sch. Dist., 60 A.D.3d 629, 629–630, 875 N.Y.S.2d 128). We note in particular with respect to the 90/180–day category that plaintiff failed to submit the requisite objective evidence of “a medically determined injury or impairment of a non-permanent nature” (§ 5102[d] ), and failed to establish that the alleged limitations in plaintiff's daily activities resulted from injuries sustained in the accident ( see Dann v. Yeh, 55 A.D.3d 1439, 1441, 865 N.Y.S.2d 472;Calucci v. Baker, 299 A.D.2d 897, 898, 750 N.Y.S.2d 675).
The plaintiff's orthopedic surgeon, Dr. Barry Katzman, causally related the plaintiff's injuries to the instant occurrence as aggravations of the pre-existing injuries. However, Dr. Katzman's summary of the plaintiff's prior accidents does not include all of the accidents, lists incorrect years for others, and, as argued by the defendants, fails to indicate that he reviewed the medical records from the prior accidents ( see Cantave v. Gelle, 60 A.D.3d 988, 989, 877 N.Y.S.2d 129;Gentilella v. Board of Educ. of Wantagh Union Free School Dist., 60 A.D.3d 629, 630, 875 N.Y.S.2d 128). Accordingly, his conclusion about causality is speculative and insufficient ( see Cantave v. Gelle, 60 A.D.3d at 989, 877 N.Y.S.2d 129). The plaintiff's papers submitted in opposition to the defendants' motion likewise fail to raise a triable issue of fact regarding the 90/180 day category of Insurance Law § 5102(d) ( see Moore v. Sarwar, 29 A.D.3d 752, 753, 816 N.Y.S.2d 503;Sainte–Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendant established, prima facie, that the alleged injuries to the cervical region of the plaintiff's spine did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275), and, in any event, were not caused by the subject accident ( cf. Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424; Gentilella v. Board of Educ. of Wantagh Union Free School Dist., 60 A.D.3d 629, 629–630, 875 N.Y.S.2d 128).
The plaintiff alleged, inter alia, that as a result of the subject accident, the lumbosacral region of her spine sustained certain injuries. The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to that region of her spine were not caused by the subject accident ( see Pommells v. Perez, 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278; Gentilella v. Board of Educ. of Wantagh Union Free School Dist., 60 A.D.3d 629, 629–630, 875 N.Y.S.2d 128). However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral region of her spine were caused by the subject accident ( see Sforza v. Big Guy Leasing Corp., 51 A.D.3d 659, 660–661, 858 N.Y.S.2d 233). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
The plaintiff alleged, inter alia, that as a result of the subject accident, the lumbosacral region of her spine sustained certain injuries. The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to that region of her spine were not caused by the subject accident (see Pommells v Perez , 4 NY3d 566, 579; Gentilella v Board of Educ. of Wantagh Union Free SchoolDist. , 60 AD3d 629, 629-630). However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral region of her spine were caused by the subject accident (see Sforza v Big Guy Leasing Corp. , 51 AD3d 659, 660-661).
The plaintiff did not provide any affirmations from any of the physicians who had treated her in the months immediately following the accident, nor did she submit any medical records from that time period, although they were available from her initial treating physician's office after he died and physicians from his practice continued to treat her. She therefore failed to set forth any evidence that she suffered from any injuries contemporaneous with the accident ( see Collado v Satellite Solutions Electronics of WNY, LLC, 56 AD3d 411; Kurin v Zyuz, 54 AD3d 902, 903; Perdomo v Scott, 50 AD3d 1115, 1116; Scotto v Suh, 50 AD3d 1012, 1013; Morris v Edmond, 48 AD3d 432, 433). In addition, none of the physicians indicated that they had reviewed the medical records from an accident that had occurred just a month before the instant accident and in which the plaintiff had injured her back and left arm ( see Cantave v Gelle, 60 AD3d 988, 989; Gentilella v Board of Educ. of Wantagh Union Free School Dist., 60 AD3d 629, 630; Silla v Mohammad, 52 Ad3d 681, 682). Accordingly, the defendants were entitled to summary judgment dismissing the first cause of action to recover damages for personal injuries.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Barnett v Smith, 64 AD3d 669, 670; Chernysheva v Pinchuck, 57 AD3d 936, 937; Dinten-Quiros v Brown, 49 AD3d 588, 589; Madison v Tahir, 45 AD3d 744). The Supreme Court properly denied that branch of motion of Nelson and Aspirity which was for leave to renew since the new evidence would not have warranted denial of the plaintiff's motion ( see Gentilella v Board of Educ. of Wantagh Union Free School Dist., 60 AD3d 629, 630; Parola, Gross Marino, P.C. v Susskind, 43 AD3d 1020, 1021).
"There is no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense" ( O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514; see Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102; Vail v KMart Corp., 25 AD3d 549, 551). Therefore, the Supreme Court properly granted Federal's motion to dismiss those causes of action and, upon reargument, properly adhered to that determination ( see Gentilella v Board of Educ. of Wantagh Union Free School Dist., 60 AD3d 629; Haggerty v Quasi, 48 AD3d 629, 631).
Further, the reports of Dr. Ross show that plaintiff suffers from degenerative disc disease in the cervical and lumbar regions of his spine, and that the vertebral and disc abnormalities revealed in the February 2011 MRI examinations were chronic in nature and preexisted the September 2010 accident (see II Chung Lim v Chrabaszcz, 95 AD3d 950, 944 NYS2d 236 [2d Dept 2012]; Jilani v Palmer, 83 AD3d 786, 920 NYS2d 424 [2d Dept 2011]; Gentilella v Board of Educ. of Wantagh Union Free School Dist., 60 AD3d 629, 875 NYS2d 128 [2d Dept 2009]). Moreover, through plaintiff's deposition testimony, defendant established that plaintiff stopped receiving chiropractic and other medical treatment for his alleged back injury approximately one year after the subject accident (see Pommells v Perez, 4 NY2d 556, 574, 797 NYS2d 380 [2005]).