| Cruz v Calderone |
| 2008 NY Slip Op 02782 [49 AD3d 798] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Jose R. Cruz et al., Appellants, v Jillian A. Calderone,Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from so much ofan order of the Supreme Court, Suffolk County (R. Doyle, J.), dated January 4, 2007, as grantedthe defendant's motion for summary judgment dismissing the complaint on the ground that noneof the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant met her prima facie burden of showing that none of the plaintiffs sustained aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]). In opposition, the plaintiffs failed to raise a triable issue offact. Although the plaintiffs' treating chiropractor averred that the plaintiffs Jose Cruz(hereinafter Jose) and Any Cruz (hereinafter Any) had sustained injuries and limitations to theircervical and/or lumbar spines as a result of the accident, he failed to address the findings of thedefendant's examining radiologist, who concluded that Jose suffered from age-relateddegenerative changes to his cervical spine, and that Any suffered from age related degenerativechanges to her lumbar spine. Thus, the chiropractor's opinion that the cervical and/or lumbarinjuries and limitations suffered by Jose and Any were caused by the subject accident wasspeculative (see Rashid v Estevez,47 AD3d 786 [2008]; Lucianov Luchsinger, 46 AD3d 634 [2007]; Siegel v Sumaliyev, 46 AD3d 666 [2007]; Giraldo v Mandanici, 24 AD3d419 [2005]). [*2]Moreover, neither the chiropractor, nor Joseand Any, explained the lengthy gap in their respective treatments which is evident from therecord (see Pommells v Perez, 4NY3d 566 [2005]; Ning Wang vHarget Cab Corp., 47 AD3d 777 [2008]; Siegel v Sumaliyev, 46 AD3d 666 [2007]).
The magnetic resonance imaging reports prepared by the plaintiffs' examining radiologistalso failed to raise an issue of fact as to whether either Jose and Any sustained serious injury (see Rashid v Estevez, 47 AD3d786 [2008]; Shvartsman v Vildman,47 AD3d 700 [2008]; Siegel vSumaliyev, 46 AD3d 666 [2007]; Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]). Theaffidavits of Jose and Any were also insufficient to raise a triable issue of fact (see Rashid v Estevez, 47 AD3d786 [2008]; Shvartsman v Vildman,47 AD3d 700 [2008]).
Finally, the plaintiffs Jose, Any, and William Cruz did not submit competent medicalevidence that they sustained medically-determined injuries of a nonpermanent nature whichprevented them from performing substantially all of their daily activities for not less than 90 ofthe first 180 days following the accident (see Ning Wang v Harget Cab Corp., 47 AD3d 777 [2008]; Shvartsman v Vildman, 47 AD3d700 [2008]). Rivera, J.P., Lifson, Miller, Carni and Eng, JJ., concur.