LORTHE v. ADEYEYE (2003)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Glover, J.), dated May 6, 2002, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, without costs or disbursements.

The defendants submitted the affirmed medical reports of their examining medical experts which established, prima facie, that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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;  McCauley v. Ross, 298 A.D.2d 506, 748 N.Y.S.2d 409).   In opposition to the motion, the plaintiffs submitted the affirmations of their examining orthopedist, who stated that each plaintiff was suffering restrictions of motion in his or her lumbosacral spine.   However, the plaintiffs' orthopedist failed to address the proof that the disc bulges in the lumbosacral spines of both plaintiffs were due to pre-existing degenerative changes.   Therefore, his findings that the plaintiffs' current restrictions of motion were causally related to the subject accident was mere speculation (see Ginty v. MacNamara, 300 A.D.2d 624, 751 N.Y.S.2d 790;  Narducci v. McRae, 298 A.D.2d 443, 748 N.Y.S.2d 764;  Kallicharan v. Sooknanan, 282 A.D.2d 573, 574, 723 N.Y.S.2d 376;  Waaland v. Weiss, 228 A.D.2d 435, 643 N.Y.S.2d 635).

The plaintiffs' proof did not raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.