| Shmerkovich v Sitar Corp. |
| 2009 NY Slip Op 03154 [61 AD3d 843] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Yevsey Shmerkovich et al., Appellants, v Sitar Corp.,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated September 26, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that neither ofthe plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant established its prima facie entitlement to judgment as a matter of lawdismissing the complaint by demonstrating that neither of the plaintiffs, who were 81 and 73years old at the time of the subject accident, sustained a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Sforza v Big Guy Leasing Corp., 51AD3d 659, 660 [2008]; Meyers vBobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]). In opposition, the plaintiffs failedto raise a triable issue of fact. Among other items, the plaintiff's examining physicians failed toaddress the finding of the defendant's radiologist that the magnetic resonance imaging studiesand CT scans of the plaintiffs' lumbar spines, cervical spines, and knees revealed onlydegenerative conditions which were not causally related to the accident (see Levine v Deposits Only, Inc., 58AD3d 697 [2009]; Johnson vBerger, 56 AD3d 725 [2008]; Ciordia v Luchian, 54 AD3d 708, 708-709 [2008]). Moreover,much of the plaintiffs' submissions consisted of unaffirmed medical records which were not[*2]competent evidence (see Smeja v Fuentes, 54 AD3d 326, 327 [2008]; Perovich vLiotta, 273 AD2d 367 [2000]; Merisca v Alford, 243 AD2d 613 [1997]). Finally,there was no competent medical evidence to establish that either of the plaintiffs sustained amedically-determined injury of a nonpermanent nature which prevented either of them fromperforming substantially all of their daily activities for not less than 90 of the first 180 daysfollowing the accident (see Sainte-Aime v Ho, 274 AD2d 569 [2000]; Arshad vGomer, 268 AD2d 450 [2000]; DiNunzio v County of Suffolk, 256 AD2d 498, 499[1998]). Skelos, J.P., Florio, Balkin and Belen, JJ., concur.