| Iovino v Scholl |
| 2010 NY Slip Op 00475 [69 AD3d 799] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Elaine Iovino, Appellant, v William H. Scholl et al.,Defendants/Third Party Plaintiffs-Respondents. Carmin Iovino, Third-PartyDefendant-Respondent. |
—[*1] Epstein, Frankini & Grammatico, Woodbury, N.Y. (Michele A. Musarra of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), datedSeptember 10, 2008, as granted that branch of the third-party defendant's motion which was forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs payable by theappellant to the third-party defendant.
The third-party defendant, Carmine Iovino, met his prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).
In opposition to the motion, the plaintiff failed to raise a triable issue of fact. Of thesubmissions which were in admissible evidentiary form, the affirmed medical reports of JohnVlattos, M.D., and Panagiotis Zenetos, M.D., as well as chiropractor Angelo Ippolito, wereinsufficient to raise a triable issue of fact because they did not address the finding of thethird-party defendant's radiologist that the condition of the plaintiff's cervical and lumbar spineswas the result of preexisting degeneration and was not caused by the subject accident (see Shmerkovich v Sitar Corp., 61AD3d 843 [2009]; Pamphile vBastien, 61 AD3d 659, 660 [2009]; Levine v Deposits Only, Inc., 58 AD3d 697, 698 [2009]; Marrache v Akron Taxi Corp., 50AD3d 973, 974 [2008]). Furthermore, the affirmed medical report of orthopedic surgeon Dr.Enrico Fazzi failed to acknowledge that the plaintiff had been involved in at least one priorautomobile accident. In light of this omission, Dr. Fazzi's findings that the subject accidentexacerbated the plaintiff's preexisting cervical [*2]discherniations and caused permanent cervical radiculopathy, are speculative (see Vickers v Francis, 63 AD3d1150, 1151 [2009]; Su Gil Yun vBarber, 63 AD3d 1140, 1142 [2009]; Donadio v Doukhnych, 55 AD3d 532, 533 [2008]; Rabolt v Park, 50 AD3d 995, 996[2008]).
The plaintiff also failed to submit competent medical evidence that the injuries she allegedlysustained in the subject accident rendered her unable to perform substantially all of her usual andcustomary activities for not less than 90 days of the first 180 days subsequent to the accident(see Shmerkovich v Sitar Corp., 61 AD3d at 844; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536 [2007];Sainte-Aime v Ho, 274 AD2d 569 [2000]). Dillon, J.P., Miller, Eng, Hall and Sgroi, JJ.,concur.