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Mitchell v. Atlantic Paratrans of NYC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 18, 2008

BARBARA MITCHELL, PLAINTIFF-RESPONDENT,
v.
ATLANTIC PARATRANS OF NYC, INC., ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 26, 2007, which denied defendants' motion for summary judgment dismissing the complaint for lack of a serious injury as defined by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

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., Tom, Buckley, Moskowitz, Renwick, JJ.

106829/06

In opposition to the defendants' prima facie showing that plaintiff did not suffer a serious injury causally related to the subject accident, plaintiff failed to raise a triable issue of fact (see Pommells v Perez, 4 NY3d 566, 574 [2005]). While it is undisputed that plaintiff was afflicted with certain spinal defects, the cause thereof, according to defendants' neurologist, was congenital malformation and not the event in question. It is uncontested that plaintiff had scoliosis and spina bifida, congenital conditions. The conclusory statements of plaintiff's experts, unsupported by any probative evidence, that plaintiff's limitations were causally related to the accident are insufficient to defeat summary judgment (see Carter v Full Serv., Inc., 29 AD3d 342, 344 [2006], lv denied 7 NY3d 709 [2006]).

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

20081218

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