SPANOS v. FANTO (2009)

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Ronald Spanos (plaintiff) when he was struck by a vehicle owned by one defendant and operated by the other defendant.   Supreme Court erred in denying defendants' motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury in the accident (see Insurance Law § 5102[d] ).  Defendants met their initial burden by submitting medical records and reports constituting “ persuasive evidence that plaintiff's alleged pain and injuries were related to ․ preexisting condition[s]” (Pommells v. Perez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278;  see Valentin v. Pomilla, 59 A.D.3d 184, 186, 873 N.Y.S.2d 537;   Clark v. Perry, 21 A.D.3d 1373, 1374, 801 N.Y.S.2d 645), and plaintiffs failed to raise a triable issue of fact whether plaintiff's alleged pain and injuries were causally related to the subject accident rather than those preexisting conditions (see Valentin, 59 A.D.3d at 186, 873 N.Y.S.2d 537;   Coston v. McGray, 49 A.D.3d 934, 935, 853 N.Y.S.2d 206;  Anania v. Verdgeline, 45 A.D.3d 1473, 846 N.Y.S.2d 831).   The conclusory statement of the examining physician for defendants that plaintiff's complaints of “right hip and leg pain with minimal complaints of low back pain ․ are causally related to [the accident]” is insufficient to raise a triable issue of fact, particularly in view of the further statement of that physician that he found no objective evidence that plaintiff sustained an injury in the accident (see Dantini v. Cuffie, 59 A.D.3d 490, 491, 873 N.Y.S.2d 189;  Eastman v. Holland, 19 A.D.3d 444, 796 N.Y.S.2d 240).   Finally, we note that, although plaintiffs are correct that they generally would be entitled to recover for economic loss in excess of basic economic loss without proof of serious injury (see generally Colvin v. Slawoniewski, 15 A.D.3d 900, 789 N.Y.S.2d 368), they made no claim for such loss in this case (cf. Barnes v. Kociszewski, 4 A.D.3d 824, 825, 771 N.Y.S.2d 429).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: