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Roberto Mitrotti, Index v. Frank J. Elia

New York Supreme and/or Appellate Courts Appellate Division, First Department


January 5, 2012

ROBERTO MITROTTI, INDEX PLAINTIFF-APPELLANT,
v.
FRANK J. ELIA,
DEFENDANT-RESPONDENT.

Mitrotti v Elia

2012 NY Slip Op 00042

Decided on January 5, 2012

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., Sweeny, Moskowitz, Manzanet-Daniels, Roman, JJ.

Order, Supreme Court, New York (George J. Silver, J.), entered August 17, 2010, which, in this action for personal injuries sustained in a motor vehicle accident, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established his entitlement to judgment as a matter of law by demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendant submitted an affirmed report of an orthopedist finding normal ranges of motion in plaintiff's cervical and lumbar spine, and left knee (see Porter v Bajana, 82 AD3d 488 [2011]). Defendant also submitted the affirmed report of a radiologist who opined that changes shown in MRIs of the then 64-year-old plaintiff were degenerative, and that the condition of his spine was unchanged since 2002, when MRIs were taken following a prior motor vehicle accident.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's medical affirmations did not provide an opinion as to causation (see Jackson v Delossantos-Diaz, 82 AD3d 489 [2011]), and while plaintiff has admitted that he was involved in another accident two years before the one at issue, his doctors ignored the effect of that accident on the purported neck and back symptoms attributable to the subject accident (see Farrington v Go On Time Car Serv., 76 AD3d 818, 818 [2010] ["even where there is objective medical proof of an injury, summary dismissal of a serious injury claim may be appropriate when additional contributory factors, such as pre-existing conditions, interrupt the chain of causation between the accident and the claimed injury"]). Plaintiff also failed to submit an affirmation of any medical expert showing current range-of-motion deficits to rebut the findings of defendant's medical experts.

Dismissal of the 90/180-day claim was also proper. Plaintiff's bill of particulars stated that he was confined to bed for two weeks and home for two months following the accident (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 523 [2010]).

We have considered plaintiff's remaining contentions, and find them unavailing.

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

ENTERED: JANUARY 5, 2012

CLERK

20120105

© 1992-2012 VersusLaw Inc.



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