| Lopez v Abdul-Wahab |
| 2009 NY Slip Op 08685 [67 AD3d 598] |
| November 24, 2009 |
| Appellate Division, First Department |
| Cain Lopez, Appellant, v Abdul Abdul-Wahab et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered October 8, 2008,which granted defendant's motion for summary judgment dismissing the complaint on theground that plaintiff did not sustain a serious injury within the meaning of the Insurance Law,unanimously affirmed, without costs.
Plaintiff was 28 years old at the time of the motor vehicle accident, in December 2004, inwhich he allegedly sustained injuries to his cervical and lumbar spine and left shoulder.Defendants established their prima facie entitlement to judgment that plaintiff had not sustaineda "serious injury" within the meaning of Insurance Law § 5102 (d) by submitting medicalaffirmations stating that no evidence of recent trauma was found on plaintiff's diagnostic films,and reporting normal ranges of motion in all tested body areas by specifying the objective teststhey used to arrive at the measurements (such as palpation, impingement sign and straight legraising), concluding that plaintiff's injuries were resolved without permanency (see DeJesus v Paulino, 61 AD3d605 [2009]). Reference to plaintiff's own proof and deposition testimony sufficiently refutedthe "permanence" and "significant" categories of serious injury under section 5102 (d) (see Colon v Tavares, 60 AD3d419 [2009]). The affirmation submitted by defendants' expert radiologist was not equivocal.From her review of the MRIs, she observed preexisting disc dessication at all of the cervical andlumbar disc levels at which injuries were alleged, explaining that desiccation is a drying out ofdisc material that develops over time and could not have occurred so quickly after the accident(see e.g. Depena v Sylla, 63 AD3d504, 505 [2009], lv denied 13 NY3d 706 [2009]; Jean v Kabaya, 63 AD3d 509, 510 [2009]). Any injury in thenature of an annular lumbar tear was not identified in the bill of particulars and need not beaddressed by this Court (see Sharma vDiaz, 48 AD3d 442, 443 [2008]), and in any event, defendants' expert radiologist found"clear evidence of pre-existing degenerative disease in the lower lumbar spine."
In opposition to defendants' motion, plaintiff improperly relied on the unaffirmed medicalreports of his treating physicians (see Grasso v Angerami, 79 NY2d 813 [1991]). Thereport of plaintiff's expert was, in the absence of objective, contemporaneous evidence of theextent and duration of the alleged physical limitations resulting from the injury, insufficient (cf. [*2]Ayala v Douglas, 57 AD3d 266, 267 [2008]). Evenconsidering the unaffirmed reports, plaintiff's experts failed to address the findings of defendants'expert radiologist, who opined that plaintiff had preexisting degenerative disease in his cervicaland lower spine (see Valentin vPomilla, 59 AD3d 184 [2009]). Plaintiff's deposition testimony that he was neverconfined to his home following the accident and missed no time from work negated his chance ofestablishing a 90/180-day serious-injury claim under section 5102 (d) (see Nguyen v Abdel-Hamed, 61 AD3d429, 430 [2009]). Concur—Friedman, J.P., McGuire, Renwick, Richter andManzanet-Daniels, JJ.