Geneva Johnson, Plaintiff-Appellant, v. Karnail Singh, et al., Defendants-Respondents. (2011)

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for Karnail Singh, respondent.

Gallo, Vitucci & Klar LLP, New York (Yolanda L. Ayala of counsel), for William Mercado and American Transit, Inc., respondents.

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Order, Supreme Court, Bronx County (Nelson S. Román, J.), entered June 16, 2009, granting the motion of defendants Mercado and American Transit, Inc., and the cross motion of defendant Singh, for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their burden of establishing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d).  Defendants' orthopedist and radiologist concluded that plaintiff's injuries were preexisting and were not caused by the accident.   Their conclusions regarding causation were supported by objective medical proof, namely MRIs and surgical reports indicating that plaintiff had degenerative conditions in her knees (compare Torres v. Knight, 63 AD3d 450 [2009], with Rodriguez v. Abdallah, 51 AD3d 590 [2008] ).

Plaintiff failed to submit sufficient evidence to raise an issue of fact as to her alleged injuries.   Her treating physician failed to address the findings of degenerative change by defendants' radiologist and provided no support for his conclusion that plaintiff's arthritis was exacerbated by the accident (see Depena v. Sylla, 63 AD3d 504, 505 [2009], lv denied 13 NY3d 706 [2009] ).

Plaintiff has also failed to raise an issue of fact concerning her inability to perform substantially all of her routine activities for at least 90 of the first 180 days following the accident.   Plaintiff testified that she was confined to bed for only a week after the accident, and there is no competent medical evidence that she was unable to perform her usual and customary activities for the relevant time period (see Lopez v American United Transp., Inc., 66 AD3d 407 [2009] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK