BEATTY v. Fineman Furniture, Company, Inc., et al., Defendants.

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Thomas BEATTY, Plaintiff–Appellant, v. MO AZHER MIAH, et al., Defendants–Respondents, Fineman Furniture, Company, Inc., et al., Defendants.

Decided: April 28, 2011

GONZALEZ, P.J., SWEENY, MOSKOWITZ, ACOSTA, MANZANET–DANIELS, JJ. Weiss & Rosenbloom, P.C., New York (Barry D. Weiss of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 16, 2010, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained in a motor vehicle accident, granted the motion of defendants Mo Azher Miah and West Cab Corp., Inc., for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law. Defendants submitted, inter alia, the affirmed reports of a neurologist, a radiologist and an orthopedist, who, based upon examinations of plaintiff and his medical records, all concluded that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's MRI scan, which evidenced a bulging disc, was taken nearly four years after the accident, and was too remote to be probative of his accident-related claim, especially since neither the radiologist nor plaintiff's doctor who treated him in 2008 offered any non-speculative opinion as to a causal connection between the bulging disc and the accident (see Pou v. E & S Wholesale Meats, Inc., 68 AD3d 446 [2009]; Whisenant v. Farazi, 67 AD3d 535 [2009] ).

Plaintiff's claim based on an alleged inability to engage in substantially all of his daily activities for 90 of the first 180 days post-accident was refuted by his own testimony. Plaintiff testified that he missed only one day of work and was only confined to bed after work (see Pou at 447).