| Barry v Future Cab Corp. |
| 2010 NY Slip Op 01905 [71 AD3d 710] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Amadou Barry, Respondent, et al., Plaintiff v Future CabCorp. et al., Appellants. |
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Budin, Reisman, Kupferberg & Bernstein, LLP, New York, N.Y. (Adam S. Bernstein ofcounsel), for respondent and plaintiff Nafaya Corporation.
In an action, inter alia, to recover damages for personal injuries, the defendants appeal froman order of the Supreme Court, Kings County (Partnow, J.), dated June 2, 2009, which deniedtheir motion for summary judgment dismissing the first cause of action on the ground that theplaintiff Amadou Barry did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the first cause of action is granted.
This appeal arises from a two-car accident which occurred at an intersection in Manhattan.The first cause of action asserted in the complaint alleged that the plaintiff Amadou Barrysustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident.
Contrary to the plaintiffs' contentions, the defendants established, prima facie, through theaffirmed reports of their expert neurologist, orthopedist, and radiologist, that Barry did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Richards v Tyson, 64 AD3d 760 [2009]; Berson v Rosada Cab Corp., 62 AD3d636 [2009]; Byrd v J.R.R.Limo, 61 AD3d 801 [2009]). The plaintiffs' submissions in opposition were insufficientto raise a triable issue of fact. The plaintiffs' physicians failed to adequately rebut the findings ofthe defendants' radiologists that the conditions in the cervical and lumbar regions of Barry'sspine, and in both of his knees, were due to degenerative forces unrelated to the accident (see Iovino v Scholl, 69 AD3d 799[2010]; Ciordia v Luchian, 54AD3d 708 [2008]). Moreover, under the circumstances, the opinion of the plaintiffs' expertorthopedist that Barry's injuries were a result of the accident was conclusory and, thus,insufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). The plaintiffs also failed to submit competent medical evidence that the injuries thatBarry allegedly [*2]sustained in the subject accident renderedhim unable to perform substantially all of his usual and customary daily activities for not lessthan 90 days of the first 180 days subsequent to the accident (see Shmerkovich v Sitar Corp., 61 AD3d 843, 844 [2009]).Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the first cause of action on the ground that Barry did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d). Dillon, J.P., Miller, Balkin,Leventhal and Austin, JJ., concur.