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Marsh v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 21, 2009

JAMES MARSH, PLAINTIFF-RESPONDENT,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS, MELIDO CABRERA, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 18, 2008, which, insofar as appealed from as limited by the briefs, denied defendants-appellants' motion for summary judgment dismissing the complaint for lack of a serious injury under the No-Fault Law, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of all defendants, dismissing the complaint in its entirety.

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.

Friedman, J.P., Sweeny, Catterson, Renwick, Freedman, JJ.

18759/05

Defendants met their burden of establishing lack of causation by their expert's opinion that plaintiff's injuries were degenerative. The only opinion on causation submitted by plaintiff that was based on admissible evidence, that of his treating chiropractor, failed to address appellants' nonconclusory expert opinion that plaintiff's allegedly permanent cervical and lumbar conditions are degenerative in nature (see Valentin v Pomilla, 59 AD3d 184, 185 [2009]); indeed, the chiropractor did not purport to provide any reason for his conclusion that such conditions were caused by the accident. Absent evidence sufficient to raise an issue of fact as to causation, plaintiff's 90/180 claim also lacks merit (see id. at 186). We dismiss the complaint as against all defendants upon a search of the record pursuant to CPLR 3212(b) (see Rose v Citywide Auto Leasing, Inc., __ AD3d __, 2009 NY Slip Op 1913 [as reflected in the record, action dismissed against all defendants, including those who had not moved for summary judgment, citing Lopez v Simpson, 39 AD3d 420, 421 [2007] (action dismissed against nonappealing defendants who had moved for summary judgment)]).

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

20090421

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