| Larkin v Goldstar Limo Corp. |
| 2007 NY Slip Op 09736 [46 AD3d 631] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Shannon Larkin, Respondent, v Goldstar Limo Corp.,Appellant, et al., Defendant. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Michael F.Villeck and Melissa C. Ingrassia of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Goldstar Limo Corp.appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated February 9, 2007,which denied its motion for summary judgment dismissing the complaint insofar as assertedagainst it on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantGoldstar Limo Corp. for summary judgment dismissing the complaint insofar as asserted againstit is granted.
The defendant Goldstar Limo Corp. (hereinafter Goldstar) met its prima facie burden byestablishing that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's medicalsubmissions were insufficient to raise a triable issue of fact since none were based on a recentexamination (see Ali v Mirshah, 41AD3d 748 [2007]; Mejia vDeRose, 35 AD3d 407 [2006]; Laruffa v Yui Ming Lau, 32 AD3d 996 [2006]). Moreover, theplaintiff's submissions failed to address the finding of [*2]Goldstar's examining radiologist that the condition of the plaintiff'scervical spine resulted from pre-existing degeneration and was not caused by the subjectaccident. Goldstar's examining radiologist also noted that the magnetic resonance imagingstudies of the plaintiff's lumbar spine evinced that he had a transitional vertebra, which wascongenital, and predisposed him to abnormal movements and premature degenerative discdisease. The failure of the plaintiff's experts to address these findings rendered speculative anyconclusions they made that the plaintiff's spinal restrictions were causally related to the subjectaccident (see Phillips v Zilinsky, 39AD3d 728 [2007]; D'Alba vYong-Ae Choi, 33 AD3d 650 [2006]). The plaintiff also failed to proffer competentmedical evidence that he sustained a medically-determined injury of a nonpermanent naturewhich prevented him, for 90 of the 180 days following the subject accident, from performing hisusual and customary activities (see Sainte-Aime v Ho, 274 AD2d 569 [2000]). Rivera,J.P., Florio, Carni and Balkin, JJ., concur.