GOMEZ v. Richie A. Fernandez et al., Defendants–Respondents. (2026)

Order, Supreme Court, Bronx County (Fidel E. Gomez, J.), entered on or about November 18, 2025, which granted the motion of defendants Steven Fotiadis and John Charles Minella for summary judgment dismissing the complaint as against them based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie entitlement to judgment as a matter of law by submitting the affirmed report of their expert radiologist, who stated that he reviewed the MRI images of the alleged injuries to plaintiff's cervical and lumbar spine, right knee, and right shoulder.  Upon that review, the radiologist concluded that the conditions shown in those images were preexisting degenerative conditions that could not have been caused by the motor vehicle collision because they could not have developed in the time period between the collision and the date that the images were taken.  This evidence was sufficient to establish that the collision did not cause plaintiff's alleged injuries (see Gjoleka v. Caban, 188 AD3d 458, 458 [1st Dept 2020] ).  The burden then shifted to plaintiff to address the evidence of preexisting degenerative conditions (see Hessing v. Carroll, 161 AD3d 462, 463 [1st Dept 2018] ).

In opposition, plaintiff failed to submit sufficient evidence to raise an issue of fact as to whether his alleged injuries were caused by the collision.  The unsworn and uncertified medical records documenting treatment in the first few months after the collision are inadmissible and cannot be bootstrapped into evidence by attaching them to an affirmed report (see Rodriguez v. Santos, 235 AD3d 564, 565 [1st Dept 2025] ).  Furthermore, although plaintiff's treating physician opined in his report that plaintiff's injuries were causally related to the collision, he first examined plaintiff three months after the accident and therefore did not contemporaneously observe plaintiff's injuries.  Thus, although the report of plaintiff's physician constituted admissible evidence, it failed to raise an issue of fact as to causation (see Perl v. Meher, 18 NY3d 208, 217–218 [2011];  Pommells v. Perez, 4 NY3d 566, 574 [2005] ).

In light of the foregoing, we need not address plaintiff's remaining arguments.