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Peter Mirdita v. Ash Leasing Inc.

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


December 13, 2012

PETER MIRDITA,
PLAINTIFF-APPELLANT,
v.
ASH LEASING INC., ET AL.,
DEFENDANTS-RESPONDENTS,
M.L. MARCASCIANO, JR.,
DEFENDANT.

Mirdita v Ash Leasing Inc.

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.

Decided on December 13, 2012

Gonzalez, P.J., Mazzarelli, Acosta, Roman, JJ.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about September 29, 2011, which, in an action for personal injuries sustained in an automobile accident, granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law by showing that the injuries plaintiff sustained to his cervical and thoracic spine and his shoulders were not serious within the meaning of Insurance Law § 5102(d). Defendants submitted, inter alia, an affirmed report of a radiologist who opined that the MRI films of the claimed injured body parts reflected a chronic pre-existing condition, and found no radiographic evidence of trauma or any causally related injury (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).

Plaintiff's opposition failed to raise a triable issue of fact. His physician's affirmed reports of the physical examinations of plaintiff measured range of motion limitations without comparing them to a normal standard, so that any claimed deficits could not be properly assessed to see whether they are significant (see Winters v Cruz, 90 AD3d 412 [1st Dept 2011]). Moreover, plaintiff failed to tender a recent physical examination by his physician, rendering the findings deficient (see Vega v MTA Bus Co., 96 AD3d 506 [1st Dept 2012]; Townes v Harlem Group, Inc., 82 AD3d 583 [1st Dept 2011]). Plaintiff's expert also failed to address the defense doctors' findings of degeneration or provide any competent evidence supporting his conclusion (see Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012]). Furthermore, in light of the lack of evidence of causation, plaintiff cannot establish his 90/180-day claim (see Barry v Arias, 94 AD3d 499 [1st Dept 2012]).

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

ENTERED: DECEMBER 13, 2012

CLERK

20121213

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