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Innocent v. Mensah

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 25, 2008

DUMESCAS INNOCENT, PLAINTIFF-RESPONDENT,
v.
SETH A. MENSAH, ET AL., DEFENDANTS-APPELLANTS,
AJAB GLU RASA, ET AL., DEFENDANTS.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 4, 2008, which denied the motion of defendants Seth Mensah and Yahya Karogor for summary judgment dismissing the complaint as against them on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed as against Mensah and Karogor. The Clerk is directed to enter judgment accordingly.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Gonzalez, Moskowitz, Acosta, Renwick, JJ.

14041/06

Summary judgment dismissing the complaint as against Mensah and Karogor should have been granted where plaintiff's opposition to defendants' prima facie showing that the subject automobile accident did not cause plaintiff to sustain a serious injury failed to raise a triable issue of fact. Although plaintiff claimed to be afflicted with continuing pain, and submitted evidence, in the form of MRIs performed two months after the accident, of the existence of herniated and bulging discs, he acknowledged that he only missed a few days from work, did not seek medical treatment for any disabling condition, but instead, underwent a limited period of physical therapy and acupuncture treatment (see Rossi v Alhassan, 48 AD3d 270 [2008]).

Proof of a bulging or herniated disc, in the absence of "additional objective medical evidence establishing that the accident resulted in significant physical limitations," is insufficient to demonstrate a serious injury (Pommells v Perez, 4 NY3d 566, 574 [2005], and plaintiff offered no competent medical proof that substantiated his contention that he could not perform his daily tasks (see Arjona v Calcano, 7 AD3d 279, 280 [2004]). Furthermore, the radiologist who interpreted the MRIs made no representation that plaintiff's injuries were caused by, or related to, the accident, and plaintiff's expert, who examined plaintiff more than three years after the accident, stated his opinion in a conclusory manner without explaining why he believed the injuries were the result of the accident (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081125

© 1992-2008 VersusLaw Inc.



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