Opinion
2012-12-13
Peter MIRDITA, Plaintiff–Appellant, v. ASH LEASING INC., et al., Defendants–Respondents, M.L. Marcasciano, Jr., Defendant.
Paul G. Vesnaver, PLLC, Baldwin (Victor A. Carr of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondents.
Paul G. Vesnaver, PLLC, Baldwin (Victor A. Carr of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondents.
GONZALEZ, P.J., MAZZARELLI, ACOSTA, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about September 29, 2011, which, in an action for personal injuries sustained in an automobile accident, granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law by showing that the injuries plaintiff sustained to his cervical and thoracic spine and his shoulders were not serious within the meaning of Insurance Law § 5102(d). Defendants submitted, inter alia, an affirmed report of a radiologist who opined that the MRI films of the claimed injured body parts reflected a chronic preexisting condition, and found no radiographic evidence of trauma or any causally related injury ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [1st Dept.2011] ).
Plaintiff's opposition failed to raise a triable issue of fact. His physician's affirmed reports of the physical examinations of plaintiff measured range of motion limitations without comparing them to a normal standard, so that any claimed deficits could not be properly assessed to see whether they are significant ( see Winters v. Cruz, 90 A.D.3d 412, 933 N.Y.S.2d 551 [1st Dept.2011] ). Moreover, plaintiff failed to tender a recent physical examination by his physician, rendering the findings deficient ( see Vega v. MTA Bus Co., 96 A.D.3d 506, 946 N.Y.S.2d 162 [1st Dept.2012];Townes v. Harlem Group, Inc., 82 A.D.3d 583, 920 N.Y.S.2d 21 [1st Dept. 2011] ). Plaintiff's expert also failed to address the defense doctors' findings of degeneration or provide any competent evidence supporting his conclusion ( see Rosa v. Mejia, 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 [1st Dept.2012] ). Furthermore, in light of the lack of evidence of causation, plaintiff cannot establish his 90/180–day claim ( see Barry v. Arias, 94 A.D.3d 499, 942 N.Y.S.2d 57 [1st Dept.2012] ).