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Kerr v. Klinger

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 30, 2010

AZERIAH KERR, PLAINTIFF-APPELLANT,
v.
MIRIAM S. KLINGER DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Paul Wooten, J.), entered April 1, 2009, which granted defendant's motion for summary judgment dismissing the complaint for lack of a 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.

Saxe J.P., Catterson, Moskowitz, Freedman, RomÁn, JJ.

111821/06

Defendant established her prima facie entitlement to summary judgment by submitting evidence, including the affirmed reports of a radiologist, who, upon reviewing the MRI films taken after plaintiff's accident, concluded that the disc bulges and/or herniations revealed therein were the result of degenerative disc disease and not caused by the automobile accident at issue (see D'Ariano v Meldish, 68 AD3d 640 [2009]; Lopez v American United Transp., Inc., 66 AD3d 407 [2009]).

In opposition, plaintiff's expert provided insufficient evidence to raise an issue of fact as to a causal connection between accident and injury (see Lopez, 66 AD3d 407). Plaintiff also failed to raise triable issues of fact as to whether he was incapacitated from performing substantially all of his usual and customary activities for at least 90 of the first 180 days after the accident, having failed to offer the requisite competent medical proof to substantiate his claim (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Moses v Gelco Corp., 63 AD3d 548 [2009]).

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

20100330

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