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Nickolson v. Albishara

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 21, 2009

MARC NICKOLSON, ET AL., PLAINTIFFS-RESPONDENTS,
v.
GERIUS T. ALBISHARA, ET AL., DEFENDANTS-APPELLANTS, MELISSA ANNE COOGAN, ET AL., DEFENDANTS.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 24, 2008, which, insofar as appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against all defendants.

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.

Andrias, J.P., Nardelli, McGuire, Acosta, DeGrasse, JJ.

22385/06

Plaintiff's expert radiologist failed to address, let alone rebut, defendants' radiologist's nonconclusory finding that plaintiff's disc bulges and herniations were caused by a pre-existing degenerative condition, or even to relate the disc bulges and herniations to the accident; accordingly, plaintiff fails to raise an issue of fact as to whether his alleged injuries were caused by the accident (see Delfino v Luzon, __ AD3d __, 812 NYS2d 24, 25 [2009]; Valentin v Pomilla, 59 AD3d 184, 185 [2009]). It does not avail plaintiff for his attorney to assert that defendants' radiologist's findings of pre-existing conditions "is unfounded and not based on any medically conclusive findings, as she did not review any prior MRI films, or ever physically examine the plaintiff, or review any of plaintiff's medical records" (cf. Ramirez v Miller, 29 AD3d 310, 314 [2006]). We dismiss the complaint as against all defendants upon a search of the record pursuant to CPLR 3212(b) (see Lopez v Simpson, 39 AD3d 420 [2007]).

M-1229

Motion seeking stay of trial dismissed as moot.

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

20090421

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