| Luciano v Luchsinger |
| 2007 NY Slip Op 09738 [46 AD3d 634] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Angelina M. Luciano et al., Appellants, v John D.Luchsinger et al., Respondents. |
—[*1] Neil L. Kanzer, Garden City, N.Y. (Lorraine M. Korth and David R. Feen of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated September 18, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that neither ofthe plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court correctly concluded that the defendants met their prima facie burden byestablishing that neither of the plaintiffs sustained a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Meyers v Bobower Yeshiva BneiZion, 20 AD3d 456 [2005]).
In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs principallyrelied upon the affidavit of Dr. David BenEliyahu and the affirmations of Dr. Arvind Chopra.Initially, the affirmations of Dr. Chopra, along with his reports, failed to raise a triable issue offact. Dr. Chopra's conclusions that the plaintiffs' injuries were the result of the subject accidentwere based on speculation. Dr. Chopra failed to address in either his affirmations or reports thefact that both plaintiffs had pre-existing degenerative conditions in their cervical and/or lumbarspines. [*2]Moreover, he failed to acknowledge that the plaintiffAngelina M. Luciano (hereinafter Angelina) had been involved in a prior car accident in whichshe injured her back and neck. Those omissions rendered speculative his conclusions that theplaintiffs' cervical and lumbar spine injuries were the result of the subject accident (see Moore v Sarwar, 29 AD3d 752[2006]; Giraldo v Mandanici, 24AD3d 419 [2005]).
Dr. BenEliyahu also failed to adequately address in his affidavit the findings of pre-existingdegenerative disc disease in Angelina's cervical and lumbar spine, and the degeneration in thelumbar spine of the plaintiff Vincent Luciano (hereinafter Vincent). This rendered speculative hisfindings that the injuries and limitations in Vincent's lumbar spine, and the injuries andlimitations in Angelina's cervical and lumbar spine, were the result of the subject accident (see Giraldo v Mandanici, 24 AD3d419 [2005]). While Dr. BenEliyahu did note that he was treating Angelina for injuries shesustained to her back and neck from a prior accident at the time the subject accident occurred, hisconclusions that the subject accident aggravated dormant conditions in her neck and back werewithout any foundation. This is so because Dr. BenEliyahu failed to provide any medicalevidence of her condition when he treated her prior to the subject accident so as to compare whather limitations were before and after the subject accident. Thus, there is no foundation for Dr.BenEliyahu's conclusions that the subject accident aggravated the prior conditions in Angelina'sspine to the extent that her range of motion was significantly diminished thereafter (see Franchini v Palmieri, 1 NY3d536 [2003]). Mastro, J.P., Santucci, Dillon and Angiolillo, JJ., concur.