| Moses v Gelco Corp. |
| 2009 NY Slip Op 04980 [63 AD3d 548] |
| June 18, 2009 |
| Appellate Division, First Department |
| Terry Moses, Appellant, v Gelco Corporation et al.,Respondents, et al., Defendants. |
—[*1] Eustace & Marquez, White Plains (Rose M. Cotter of counsel), for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about May 19,2008, directing entry of judgment dismissing the complaint for lack of a serious injury asrequired by Insurance Law § 5102 (d), unanimously affirmed, withoutcosts.
Defendants met their initial burden of demonstrating the lack of a serious injury bysubmitting the affirmed reports of various physicians establishing that plaintiff's injuries were theresult of a degenerative condition (see Pommells v Perez, 4 NY3d 566, 580 [2005]), anddocumentary evidence showing that plaintiff was involved in another accident three years beforethe subject accident for which he brought a lawsuit alleging injuries virtually identical to thosealleged in this lawsuit (see Becerril v Sol Cab Corp., 50 AD3d 261, 261-262 [2008]).
Plaintiff's opposition, which sought to establish a serious injury under the 90/180 category,failed to offer the requisite "competent medical proof" of incapacity caused by the accident(Rossi v Alhassan, 48 AD3d 270, 271 [2008]; see also Marsh v City of NewYork, 61 AD3d 552 [2009] [absent evidence sufficient to raise an issue of fact as tocausation, plaintiff's 90/180 claim also lacks merit]). Indeed, plaintiff's medical evidence,namely, the affidavit of his chiropractor, which failed to address, let alone refute, thedegenerative causation found by defendants' physicians, and did not purport to explain why theprior accident could be ruled out as the cause of plaintiff's current alleged limitations, was aptlycharacterized by the motion court as speculative (see Montgomery v Pena, 19 AD3d 288,290 [2005]; Style v Joseph, 32 AD3d 212, 215 [2006]). We note that plaintiff's claim thatat the time of the accident he had been working in his physically demanding job for well over ayear without complaint—meant to show that he had healed from the injuries sustained inthe prior accident—is directly [*2]contradicted by hisdeposition testimony in the other lawsuit. We have considered plaintiff's remaining argumentsand find them unavailing. Concur—Andrias, J.P., Catterson, Renwick, DeGrasse andFreedman, JJ.