OSEI v. “John Doe 1,” etc., et al., Defendants. (2026)

Order, Supreme Court, Bronx County (John A. Howard–Algarin, J.), entered September 24, 2025, which granted defendant Bagban Transportation Inc.’s motion and defendant E.A. Polanco–Puello's cross-motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Supreme Court correctly granted defendants’ motion for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury under Insurance Law § 5102(d).  Defendants established their prima facie entitlement to summary judgment dismissing plaintiff's claims of permanent consequential limitation of use and significant limitation of use by submitting the report of Bagban Transportation's expert radiologist, who reviewed the MRIs of plaintiff's cervical and lumbar spine and opined that they depicted only preexisting, degenerative conditions not causally related to the accident (see e.g. Cooke v Jean–Baptiste, 247 AD3d 447, 448 [1st Dept 2026];  Solano v American United Transp.  Inc., 243 AD3d 497, 498 [1st Dept 2025] ).

In opposition, although plaintiff was not required to address any perceived gap in or cessation of his treatment because defendants did not raise that issue in their moving papers (see e.g. Nwanji v City of New York, 190 AD3d 650, 651 [1st Dept 2021];  Massillon v Regalado, 176 AD3d 600, 601 [1st Dept 2019] ), he failed to raise an issue of fact as to causation.  Plaintiff's radiologist, the only one of his experts who examined the actual MRIs of his cervical and lumbar spine, offered no opinion on causation in either his affirmation or his reports (see Valdez v. Benjamin, 101 AD3d 622 [1st Dept 2012]; Nieves v Castillo, 74 AD3d 535, 535 [1st Dept 2010]).  In addition, none of plaintiff's experts specifically addressed the findings by Bagban Transportation's expert radiologist that plaintiff's images showed degenerative conditions that could not have developed in a short time, and that there were no posttraumatic changes causally related to the vehicle collision (see Pommells v Perez, 4 NY3d 566, 579–580 [2005];  Franchini v. Palmieri, 1 NY3d 536, 537 [2003];  Dixon v. Kone, 170 AD3d 541, 541–542[1st Dept 2019] ). The lack of causation defeats plaintiff's -day claim as well (see e.g. Harvey v. New York Foundling Hosp., 248 AD3d 689, 689 [1st Dept 2026];  Cooke, 247 AD3d at 449).

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