| Nickolson v Albishara |
| 2009 NY Slip Op 03036 [61 AD3d 542] |
| April 21, 2009 |
| Appellate Division, First Department |
| Marc Nickolson et al., Respondents, v Gerius T. Albisharaet al., Appellants, et al., Defendants. |
—[*1] Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Christina N. Rieker of counsel),for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 24, 2008, which,insofar as appealed from, denied defendants-appellants' motion for summary judgmentdismissing the complaint for lack of a serious injury within the meaning of Insurance Law§ 5102 (d), unanimously reversed, on the law, without costs, and the motion granted. TheClerk is directed to enter judgment dismissing the complaint as against all defendants.
Plaintiff's expert radiologist failed to address, let alone rebut, defendants' radiologist'snonconclusory finding that plaintiff's disc bulges and herniations were caused by a preexistingdegenerative condition, or even to relate the disc bulges and herniations to the accident;accordingly, plaintiff fails to raise an issue of fact as to whether his alleged injuries were causedby the accident (see Delfino vLuzon, 60 AD3d 196, 198 [2009]; Valentin v Pomilla, 59 AD3d 184, 185 [2009]). It does not availplaintiff for his attorney to assert that defendants' radiologist's findings of preexisting conditions"is unfounded and not based on any medically conclusive findings, as she did not review anyprior MRI films, or ever physically examine the plaintiff, or review any of plaintiff's medicalrecords" (cf. Ramirez v Miller, 29 [*2]AD3d 310, 314[2006]). We dismiss the complaint as against all defendants upon a search of the record pursuantto CPLR 3212 (b) (see Lopez vSimpson, 39 AD3d 420 [2007]).
Motion seeking stay of trial dismissed as moot. Concur—Andrias, J.P., Nardelli,McGuire, Acosta and DeGrasse, JJ.