| Amamedi v Archibala |
| 2010 NY Slip Op 00901 [70 AD3d 449] |
| February 9, 2010 |
| Appellate Division, First Department |
| Alexie Amamedi et al., Respondents, v Joel O. Archibalaet al., Appellants. |
—[*1] Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Philip M. Aglietti of counsel),for respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about August 5,2009, which denied defendants' motion for summary judgment, unanimously reversed, on thelaw, without costs, the motion granted and the complaint dismissed. The Clerk is directed toenter judgment accordingly.
Contrary to defendants' contention, plaintiffs' medical evidence was admissible, as thesubmissions of the injured plaintiff's treating doctors were both affirmed, and defendants' expert,Dr. Montalbano, specifically referenced the unaffirmed MRI reports and relied on the resultstherein. Nevertheless, defendants established prima facie entitlement to judgment that the injuredplaintiff did not sustain a "serious injury" (Insurance Law § 5102 [d]) by submitting expertaffirmations that found no medical evidence of recent trauma on the patient's diagnostic filmsand reported normal ranges of motion in all tested body areas by specifying the tests they used toarrive at the measurements, and concluding that the injuries resolved without permanency (see DeJesus v Paulino, 61 AD3d605 [2009]). The affirmation of defendants' radiologist, Dr. Eisenstadt—who statedthat desiccation along the spine "involves a drying out of [d]isc material which is a degenerativeprocess greater than three months in origin. It could not have occurred in the time intervalbetween examination and injury, and it is located at the most common levels in the populationfor degenerative disc disease to occur"—was sufficient to establish defendants' prima facieentitlement to summary judgment.
Defendants made a prima facie showing that plaintiff did not sustain a 90/180-day injury(Insurance Law § 5102 [d]); absent evidence sufficient to raise an issue of fact as tocausation, this claim lacks merit (seeValentin v Pomilla, 59 AD3d 184, 186-187 [2009]). The fact that the injured plaintiffmay have missed more than 90 days of work is not determinative of this claim (Ortiz v Ash Leasing, Inc., 63 AD3d556, 557 [2009]), and there is no evidence in the record suggesting that he was preventedfrom performing substantially all of the material acts that constituted his usual and customarydaily activities for 90 of the 180 days following the accident (see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied8 NY3d 808 [2007]).
Plaintiffs failed to meet the consequent burden of demonstrating serious injuries as definedin the statute (Franchini v Palmieri,1 NY3d 536 [2003]), since both of the treating [*2]physicians failed to address the degenerative condition noted byboth of defendants' experts (see Valentin, 59 AD3d at 186). Dr. Montalbano affirmedthat absent any other detailed evidence, the injured plaintiff's degenerative condition wasconsistent with his age, occupation and comorbid condition of being overweight; at the veryleast, this warranted some kind of rebuttal on plaintiffs' behalf (cf. June v Akhtar, 62 AD3d 427[2009]). Concur—Tom, J.P., Andrias, Friedman, Nardelli and Catterson, JJ.