BECERRIL v. SOL CAB CORP (2008)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about October 25, 2007, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by 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.

 Defendants established a prima facie entitlement to summary judgment by submitting, inter alia, the affirmed report of a radiologist who opined that plaintiff's MRI films revealed degenerative disc disease, and no evidence of post-traumatic injury to the disc structures (see Montgomery v. Pena, 19 A.D.3d 288, 289, 798 N.Y.S.2d 17 [2005] ).   Defendants also submitted plaintiff's deposition testimony, where he stated that he missed no work as a result of his accident.

 In opposition, plaintiffs failed to raise a triable issue of fact as to whether he sustained a serious injury.   Although plaintiff submitted an affirmed report from his treating chiropractor detailing the objective testing employed during plaintiff's examination and revealing limited ranges of motion, no adequate explanation was provided that plaintiff's injuries were caused by the subject accident (see Style v. Joseph, 32 A.D.3d 212, 215, 820 N.Y.S.2d 26 [2006] ).   Notably, plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prior accident, and an MRI conducted shortly after the subject accident showed degenerative disc disease.   In these circumstances, it was incumbent upon plaintiff to present proof addressing the asserted lack of causation (see Brewster v. FTM Servo, Corp., 44 A.D.3d 351, 352, 844 N.Y.S.2d 5 [2007] ).

 Furthermore, as noted, plaintiff missed no work as a result of the accident, and absent objective medical evidence, his subjective statements that he was limited in his ability to exercise or perform personal maintenance were insufficient to establish a serious injury under the 90/180 day prong of Insurance Law § 5102(d) (see Nelson v. Distant, 308 A.D.2d 338, 340, 764 N.Y.S.2d 258 [2003];  Lauretta v. County of Suffolk, 273 A.D.2d 204, 205, 708 N.Y.S.2d 468 [2000], lv. denied 95 N.Y.2d 770, 722 N.Y.S.2d 473, 745 N.E.2d 393 [2000] ).

We have considered plaintiff's remaining contentions and find them unavailing.