| Donadio v Doukhnych |
| 2008 NY Slip Op 07612 [55 AD3d 532] |
| October 7, 2008 |
| Appellate Division, Second Department |
| John Donadio et al., Respondents, v Stephan Doukhnych,Appellant, et al., Defendants. |
—[*1] Kerner & Kerner, New York, N.Y. (Kenneth T. Kerner of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Stephan Doukhnychappeals from so much of an order of the Supreme Court, Richmond County (Maltese, J.), enteredAugust 20, 2007, as denied his cross motion for summary judgment dismissing the complaint insofar asasserted against him on the ground that the plaintiff John Donadio did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the crossmotion of the defendant Stephan Doukhnych for summary judgment dismissing the complaint insofar asasserted against him on the ground that the plaintiff John Donadio did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) is granted.
In support of his cross motion, the defendant Stephan Doukhnych met his prima facie burden ofshowing that the plaintiff John Donadio (hereinafter the injured plaintiff) did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure 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 of fact. The plaintiffs reliedsolely on the affirmed medical report of the injured plaintiff's treating physician. That report failed toacknowledge that the injured plaintiff had been involved in two other accidents in which he injured hisneck, back, and shoulders. In light of this omission, the treating physician's conclusion that the injuriesand range of motion [*2]limitations to the injured plaintiff's neck, back,and shoulders observed during his examinations were the sole result of the subject accident wasspeculative (see Seck v Minigreen HackingCorp., 53 AD3d 608 [2008]; Silla vMohammad, 52 AD3d 681 [2008]; Munoz v Koyfman, 44 AD3d 914 [2007]; Mooney v Edwards, 12 AD3d 424[2004]). Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur.