Summary
In Gintv v. MacNamara, supra, the defendants had submitted the sworn medical reports of their examining medical experts which establish, prima facie, that plaintiff did not sustain a serious injury within the meaning of the statute.
Summary of this case from Thompson v. Bronx Merch. Funding Servs., LLCOpinion
2002-03609
Submitted December 11, 2002.
December 30, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered March 25, 2002, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Sullivan Papain Block McGrath Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Stewart G. Milch of counsel), for appellant.
Wilson, Bave, Conboy, Cozza Couzens, P.C., White Plains, N.Y. (Robert J. Gironda of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The defendants submitted the sworn medical reports of their examining medical experts which established, prima facie, 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; McCauley v. Ross, 298 A.D.2d 506 [2d Dept; Oct. 21, 2002]). In opposition to the motion, the plaintiff submitted the opinion of his examining physician that the plaintiff was suffering from restriction of motion in his cervical spine. However, the plaintiff's expert failed to indicate his awareness that the plaintiff was suffering from chronic degenerative disc disease, and therefore, his finding that the plaintiff's current restriction of motion was causally related to the subject accident was mere speculation (see Narducci v. McRae, 298 A.D.2d 443; Kallicharan v. Sooknanan, 282 A.D.2d 573, 574; Waaland v. Weiss, 228 A.D.2d 435). Furthermore, the plaintiff failed to explain a significant gap in treatment (see Crespo v. Kramer, 295 A.D.2d 467; Mejia v. Thom, 280 A.D.2d 528; Borino v. Little, 273 A.D.2d 262).
The plaintiff's submissions did not raise a triable issue of fact (see Toure v. Avis Rent A Car Sys., supra; Keena v. Trappen, 294 A.D.2d 405). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
ALTMAN, J.P., S. MILLER, McGINITY, SCHMIDT and RIVERA, JJ., concur.