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D'Ariano v. Meldish

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 22, 2009

ALICE GONG D'ARIANO, ET AL., PLAINTIFFS-APPELLANTS,
v.
MONIQUE MELDISH, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about October 16, 2008, which granted defendants' motion for summary judgment dismissing the complaint for lack of serious injury, unanimously affirmed, without costs.

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.

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

25587/04

Defendants carried their prima facie burden by showing that the injured plaintiff's disc condition was degenerative and not caused by the trauma of the accident. Plaintiffs failed to adequately address such showing (see DeJesus v Paulino, 61 AD3d 605, 607-608 [2009]); speculation by plaintiff's family physician, that a radiologist who conducted an MRI of plaintiff's lumbar spine would have noted the existence of degenerative disc disease in his report had he seen any, was properly rejected by the motion court. In view of the foregoing, it is unnecessary to address the parties' other contentions.

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

20091222

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