| Ashquabe v McConnell |
| 2007 NY Slip Op 10294 [46 AD3d 1419] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Torrence Ashquabe, Respondent, v Cynthia J. McConnell,Appellant. |
—[*1] Law Office of Kenneth Bernas, Buffalo (Kenneth P. Bernas of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), enteredNovember 8, 2006 in a personal injury action. The order, among other things, denied defendant'smotion for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when a motor vehicle driven by defendant rear-ended the vehicle driven by plaintiff.Supreme Court properly denied defendant's motion for summary judgment dismissing thecomplaint on the ground that plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d). Defendant failed to meet her initial burden of establishing that"plaintiff's alleged injuries sustained in the accident were preexisting" (Clark v Perry, 21 AD3d 1373,1374 [2005]). In support of her motion, defendant submitted the report of a physician whoexamined plaintiff on behalf of defendant. According to that physician, plaintiff "incurred acervical muscle strain as a result of the motor vehicle accident." The physician further stated thatMRI scans of plaintiff's cervical spine "reveal[ed] degenerative disc disease/spondylosis at[C5-6] and [C6-7, as well as] associated mild disc bulging," and that MRI scans of plaintiff'sthoracic spine "reveal[ed] degenerative disc disease at [T4-5] and [T5-6]." The physician failedto address the herniation at C6-7 observed by a radiologist, however, although he indicated thathe had reviewed the radiologists' reports accompanying the MRI scans of plaintiff's cervicalspine. In addition, the physician noted that plaintiff "denie[d] history of any similar preexistentpain conditions predating the motor vehicle accident," but he failed to address the significance ofthe absence of any prior complaints of similar pain. We thus conclude that the physician's reportdoes not constitute "persuasive evidence that plaintiff's alleged pain and injuries were related to apreexisting condition" (Carrasco v Mendez, 4 NY3d 566, 580 [2005]; see also Gentile v Snook, 20 AD3d389 [2005]; cf. Clark, 21 AD3d 1373 [2005]). Indeed, we conclude that thephysician's analysis was conclusory and therefore "insufficient to establish that plaintiff's painmight be chronic and unrelated to the accident" (Brown v Dunlap, 4 NY3d 566, 577[2005]). Present—Gorski, J.P., Martoche, Lunn, Fahey and Pine, JJ. [See 14 Misc3d 211 (2006).]