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Nieves v. Castillo

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 10, 2010

LOURDES NIEVES, PLAINTIFF-APPELLANT,
v.
JOSE CASTILLO, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 30, 2009, which granted defendants' motion for summary judgment dismissing the complaint for failure to show 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.

Tom, J.P., Andrias, Catterson, Moskowitz, Acosta, JJ.

108448/04

Defendants carried their prima facie burden regarding plaintiff's claim of permanent injuries; contrary to plaintiff's assertion, defendants' medical expert's findings in this regard were based on objective tests. In opposition, plaintiff failed to raise an issue of fact, since one of her physicians did not opine as to causation of her claimed injuries (see Gibbs v Hee Hong, 63 AD3d 559, 559 [2009]), the other's conclusion that the accident had aggravated a degenerative condition of her cervical spine was unexplained and speculative (see Gorden v Tibulcio, 50 AD3d 460, 464 [2008]), and neither addressed defendants' medical expert's normal findings regarding plaintiff's lumbar spine, shoulder, and knee (see Glover v Capres Contr. Corp., 61 AD3d 549, 549 [2009]). The medical opinions submitted in support of plaintiff's supplemental showing, based on MRIs and examinations more than four years after the accident, were too remote to be probative (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).

Defendants carried their burden regarding plaintiff's 90/180 claim based on her deposition testimony that she missed only six weeks of work (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 522-523 [2010]; Byong Yol Li v Canela, 70 AD3d 584, 584 [2010]). In opposition, plaintiff failed to raise an issue of fact, since she did not submit probative evidence of causation (see Amamedi v Archibala, 70 AD3d 449, 450 [2010]), medical evidence of her claimed inability to perform certain daily activities (see Weinberg v Okapi Taxi, Inc., __ AD3d __, 2010 NY Slip Op 3791 [May 4, 2010]), or documentation from her employer (see Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 [2009]).

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

20100610

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