| Lopez v American United Transp., Inc. |
| 2009 NY Slip Op 06773 [66 AD3d 407] |
| October 1, 2009 |
| Appellate Division, First Department |
| Reinaldo Lopez, Sr., Respondent, v American UnitedTransportation, Inc., et al., Appellants. |
—[*1] Alexander J. Wulwick, New York, for respondent.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered January 6, 2009,which denied defendants' motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment accordingly.
The reports submitted by defendants' examining physician sufficiently demonstrated thatplaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d), andsupported the theory that his injuries were related to preexisting degenerative conditions ratherthan to the accident, proffering a detailed analysis of the preexisting condition and itsdegenerative nature. In response, plaintiff's expert failed to satisfactorily rebut this conclusion,neglecting even to mention, let alone explain, why he ruled out degenerative changes, thusrendering his opinion speculative (Montgomery v Pena, 19 AD3d 288, 290 [2005]) and insufficient toraise an issue of fact as to a causal connection between accident and injury (Pommells v Perez, 4 NY3d 566,579-580 [2005]). In particular, plaintiff's expert failed to explain how the alleged serious injuriesto plaintiff's right rotator cuff and lumbar spine might not have been related to his age, morbidobesity or prior occupation as a furniture installer (see Chan v Garcia, 24 AD3d 197 [2005]).
Plaintiff concedes that he failed to raise an issue of fact concerning his inability to performsubstantially all of his routine daily activities for at least 90 of the first 180 days [*2]following the accident. There is no competent medical evidence onhis behalf that he was unable to perform such activities (see Prestol v McKissock, 50 AD3d 600 [2008]).Concur—Tom, J.P., Andrias, Nardelli, DeGrasse and Freedman, JJ.