REEFER v. ADOM RENTAL TRANSPORT INC (2009)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated April 30, 2009, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject 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; see also Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's submissions failed to address the findings of the defendants' radiologist that the condition of the cervical and lumbar regions of the plaintiff's spine resulted from chronic degeneration and was not caused by the subject accident (see Levine v. Deposits Only, Inc., 58 A.D.3d 697, 872 N.Y.S.2d 149; Saint-Hilaire v. PV Holding Corp., 56 A.D.3d 541, 867 N.Y.S.2d 494). This failure rendered speculative the findings of Dr. Miriam Kanter, upon whose reports and affirmation the plaintiff principally relied in opposing the defendants' motion, that the plaintiff's injuries were caused by the subject accident (see Norton v. Roder, 65 A.D.3d 1317, 887 N.Y.S.2d 129; Luciano v. Luchsinger, 46 A.D.3d 634, 847 N.Y.S.2d 622; Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124). As another consequence of this failure, the plaintiff did not proffer any competent medical evidence to establish that he sustained any medically-determined injuries of a nonpermanent nature which prevented him from performing substantially all of his usual and customary daily activities for not less than 90 of the first 180 days following the subject accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133).

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment.