| Marsh v City of New York |
| 2009 NY Slip Op 03049 [61 AD3d 552] |
| April 21, 2009 |
| Appellate Division, First Department |
| James Marsh, Respondent, v City of New York et al.,Defendants, and Melido Cabrera et al., Appellants. |
—[*1] Law Offices of Alvin M. Bernstone LLP, New York (Matthew A. Schroeder of counsel), forrespondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 18, 2008,which, insofar as appealed from as limited by the briefs, denied defendants-appellants' motionfor summary judgment dismissing the complaint for lack of a serious injury under the No-FaultLaw, unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment in favor of all defendants, dismissing the complaint in its entirety.
Defendants met their burden of establishing lack of causation by their expert's opinion thatplaintiff's injuries were degenerative. The only opinion on causation submitted by plaintiff thatwas based on admissible evidence, that of his treating chiropractor, failed to address appellants'nonconclusory expert opinion that plaintiff's allegedly permanent cervical and lumbar conditionsare degenerative in nature (see Valentinv Pomilla, 59 AD3d 184, 185 [2009]); indeed, the chiropractor did not purport toprovide any reason for his conclusion that such conditions were caused by the accident. Absentevidence sufficient to raise an issue of fact as to causation, plaintiff's 90/180 claim also lacksmerit (see id. at 186). We dismiss the complaint as against all defendants upon a searchof the record pursuant to CPLR 3212 (b) (see Rose v Citywide Auto Leasing, Inc., 60 AD3d 520 [2009] [asreflected in the record, action dismissed against all defendants, including those who had notmoved for summary judgment], citing Lopez v [*2]Simpson, 39 AD3d420, 421 [2007] [action dismissed against nonappealing defendants who had moved forsummary judgment]). Concur—Friedman, J.P., Sweeny, Catterson, Renwick andFreedman, JJ.