Lux v Jakson

2008 NY Slip Op 05198

Decided on June 6, 2008

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2008


PRESENT: HURLBUTT, J.P., MARTOCHE, LUNN, GREEN, AND GORSKI, JJ.
798 CA 07-02716




Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered October 26, 2007 in a personal injury action. The order denied defendants' motion for summary judgment dismissing the complaint.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
NOTARO, LAING & NAVARRO, P.C., BUFFALO (THOMAS J. NAVARRO, JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the motor vehicle that she was operating was struck by a vehicle operated by defendant Darlene M. Jakson. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court erred in denying the motion. Defendants met their initial burden by submitting, inter alia, an affirmed report of a physician who examined plaintiff on behalf of defendants and concluded that there was no objective evidence that plaintiff sustained a serious injury in her cervical spine as a result of the accident but, rather, plaintiff suffered from a preexisting degenerative condition in her cervical spine and had previously injured her cervical spine. "[W]ith persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant[s'] claimed lack of causation" (Carrasco v Mendez, 4 NY3d 566, 580), and plaintiff failed to meet that burden. The affidavit of plaintiff's treating chiropractor submitted in opposition to the motion is insufficient to raise an issue of fact whether plaintiff's condition was caused by the accident inasmuch as the chiropractor did not address degenerative changes in plaintiff's cervical spine or the prior injury thereto (see Coston v McGray, 49 AD3d 934, 935-936; Smith v Cherubini, 44 AD3d 520; Agard v Bryant, 24 AD3d 182).
Entered: June 6, 2008
JoAnn M. Wahl
Clerk of the Court