Opinion
2013-06-20
Abu KAMARA, Plaintiff–Respondent, v. Tawfiq AJLAN, et al., Defendants–Appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for appellants. Friedman, Levy, Goldfarb & Green, P.C., New York (Ira H. Goldfarb of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for appellants. Friedman, Levy, Goldfarb & Green, P.C., New York (Ira H. Goldfarb of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, MANZANET–DANIELS, GISCHE, CLARK, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered January 31, 2012, which denied defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
Plaintiff alleges he suffered serious injuries to his right knee, cervical spine and lumbar spine in an accident that occurred when the taxi he was driving was struck in the rear by defendants' taxi. Contrary to the motion court's determination, defendants made a prima facie showing that plaintiff did not suffer a permanent consequential or significant limitation in any of the aforementioned body parts by submitting medical evidence that he had full range of motion in those parts. In addition, defendants' radiologist and orthopedist reviewed the MRIs of the subject parts, and each opined that plaintiff had suffered a prior injury to his right knee and had preexisting degenerative conditions in each of the parts ( see McArthur v. Act Limo, Inc., 93 A.D.3d 567, 568, 940 N.Y.S.2d 616 [1st Dept. 2012];Mitrotti v. Elia, 91 A.D.3d 449, 449–450, 936 N.Y.S.2d 42 [1st Dept. 2012] ).
In opposition, plaintiff failed to submit evidence in admissible form sufficient to raise an issue of fact as to whether he had suffered injuries caused by the accident, or whether he had any permanent or significant limitations. The unaffirmed MRI reports submitted by plaintiff noted degenerative changes in the spine and right knee and a likely prior knee fracture, consistent with the findings noted in defendants' physicians' reports. Notwithstanding the uncontroverted evidence of preexisting conditions unrelated to the accident, plaintiff's physicians ignored the effect of those prior conditions, presented no evidencethat the claimed injuries were different from the preexisting conditions, and failed to otherwise explain why those preexisting conditions 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];Rampersaud v. Eljamali, 100 A.D.3d 508, 509, 954 N.Y.S.2d 65 [1st Dept. 2012] ). Plaintiff also failed to submit evidence of sufficiently recent range-of-motion deficits or qualitative limitations in the use of his right knee, lumbar spine or cervical spine ( see Mitrotti, 91 A.D.3d at 450, 936 N.Y.S.2d 42;Vega v. MTA Bus Co., 96 A.D.3d 506, 507, 946 N.Y.S.2d 162 [1st Dept. 2012] ).
Absent evidence that plaintiff's injuries were caused by the subject accident, his 90/180–day claim also fails ( see Rampersaud, 100 A.D.3d at 509, 954 N.Y.S.2d 65).
We have considered plaintiff's remaining contentions and find them unavailing.