SHMERKOVICH v. SITAR CORP (2009)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated September 26, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that neither of the plaintiffs, who were 81 and 73 years old at the time of the subject accident, sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Sforza v. Big Guy Leasing Corp., 51 A.D.3d 659, 660, 858 N.Y.S.2d 233;  Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773).   In opposition, the plaintiffs failed to raise a triable issue of fact.   Among other items, the plaintiff's examining physicians failed to address the finding of the defendant's radiologist that the magnetic resonance imaging studies and CT scans of the plaintiffs' lumbar spines, cervical spines, and knees revealed only degenerative conditions which were not causally related to the accident (see Levine v. Deposits Only, Inc., 58 A.D.3d 697, 872 N.Y.S.2d 149;  Johnson v. Berger, 56 A.D.3d 725, 867 N.Y.S.2d 919;  Ciordia v. Luchian, 54 A.D.3d 708, 708-709, 864 N.Y.S.2d 74).   Moreover, much of the plaintiffs' submissions consisted of unaffirmed medical records which were not competent evidence (see Smeja v. Fuentes, 54 A.D.3d 326, 327, 863 N.Y.S.2d 689;  Perovich v. Liotta, 273 A.D.2d 367, 710 N.Y.S.2d 908;  Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853).   Finally, there was no competent medical evidence to establish that either of the plaintiffs sustained a medically-determined injury of a nonpermanent nature which prevented either of them from performing substantially all of their daily activities for not less than 90 of the first 180 days following the accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499, 682 N.Y.S.2d 406).