GERSIC v. Brenmar Inc., Defendant–appellant. (2026)

Order, Supreme Court, Bronx County (Patsy Gouldborne, J.), entered on or about October 24, 2025, which, to the extent appealed from, denied so much of defendant Brenmar Inc.'s motion for summary judgment as sought dismissal of plaintiff's claims of serious injury within the meaning of Insurance Law § 5102(d) based on permanent consequential limitation of use and significant limitation of use, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed as against Brenmar and, upon a search of the record, defendant Garry Kuehner.  The Clerk is directed to enter judgment accordingly.

Brenmar established prima facie that plaintiff's claimed injuries were not causally related to the accident, but were in fact the result of chronic, preexisting degenerative conditions (see e.g. Kemegue v Rosario–Ramirez, 250 AD3d 565, 566 [1st Dept 2026];  McKenzie–Moses v Lelcaj, 238 AD3d 415, 415 [1st Dept 2025] ).  To the extent Brenmar's expert physiatrist acknowledged that plaintiff sustained accident-related injuries, those were minor sprains and strains that had fully resolved;  reference to them is not fatal to Brenmar's attempt to satisfy its prima facie burden because the physiatrist opined that the herniations causing plaintiff's symptoms that form the basis of his current claim were the result of degenerative conditions not causally related to the accident (see Fernandez v Sukhdeep, 245 AD3d 630, 632 n [1st Dept 2026] ).

Plaintiff failed to raise an issue of fact in opposition.  Contrary to Brenmar's contention, it was acceptable for plaintiff's treating chiropractor to correlate the onset of plaintiff's symptoms with the accident based on plaintiff's report that he had not experienced those symptoms prior to the accident (see e.g. Attilio v Torres, 181 AD3d 460, 461 [1st Dept 2020] ).  Nevertheless, the chiropractor did not explain why plaintiff's claimed herniations were traumatic in origin, as opposed to being degenerative in nature.  The chiropractor also did not opine that the accident activated, aggravated, or exacerbated plaintiff's degenerative conditions;  rather, he insisted that the herniations were caused by the accident, with no explanation or support.  Plaintiff's treating orthopedic surgeon's opinion suffers from the same defect.  Accordingly, plaintiff's experts' conclusory opinions on causation failed to raise an issue of fact in opposition to Brenmar's prima facie showing (see e.g. Amezquita v. Peguero, 250 AD3d 644, 645 [1st Dept 2026];  McKenzie–Moses, 238 AD3d at 416;  but see Ortiz v Boamah, 169 AD3d 486, 488 [1st Dept 2019] ).

Although defendant Garry Kuehner did not separately move for summary judgment or appeal from the order, we search the record and grant him summary judgment dismissing the complaint as against him.  If a plaintiff cannot meet the serious injury threshold as against one defendant, he cannot meet it as against the other defendants (see e.g. McKenzie–Moses, 238 AD3d at 416;  Natera v Veloz Livery Rentals Inc., 206 AD3d 428, 429 [1st Dept 2022] ).