VITALE v. CARSON

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Supreme Court, Appellate Division, Second Department, New York.

Carmine S. VITALE, appellant, v. Daniel L. CARSON, et al., respondents.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Trager, Cronin & Byczek, LLP, Lake Success, N.Y. (Raymond E. Kerno of counsel), for appellant. Michael E. Pressman, New York, N.Y. (Tod S. Fichtelberg of counsel), for respondents Daniel L. Carson and Docs Trucking, Inc. Ann K. Kandel, Hauppauge, N.Y. (Kathleen D. Foley of counsel), for respondents Neftali P. Soto and Penske Truck Leasing Corporation. Rivkin, Radler & Kremer, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and William C. Heuer of counsel), for respondent Carmen I. Villanueva. Chesney & Murphy, LLP, Baldwin, N.Y. (Robert M. Bodzin of counsel), for respondents George R. Hagerman and Road Con Systems.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated January 26, 1998, which granted the respective motions of the defendants for summary judgment dismissing the complaint insofar as asserted against them on the ground that he failed to sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

The defendants separately moved for summary judgment dismissing the complaint insofar as asserted against them, on the ground that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102(d), and that the plaintiff's medical records established that his complaints were pre-existing.   In opposition to the defendants' motion papers, which established prima facie that they were entitled to judgment as a matter of law, the plaintiff submitted no medical evidence to support his allegation that an exacerbation and/or acceleration of his pre-existing injuries was causally related to the subject accident (see, Nadrich v. Woodcrest Country Club, 250 A.D.2d 827, 671 N.Y.S.2d 1017;  Zuckerman v. Karagjozi, 247 A.D.2d 536, 669 N.Y.S.2d 295;  Weaver v. Derr, 242 A.D.2d 823, 661 N.Y.S.2d 684;  Antoniou v. Duff, 204 A.D.2d 670, 612 N.Y.S.2d 430).   Accordingly, summary judgment was properly granted to the defendants dismissing the complaint.

MEMORANDUM BY THE COURT.

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