| Kublo v Rzadkowski |
| 2010 NY Slip Op 02100 [71 AD3d 831] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Kevin Kublo, Appellant, v Stanislaw Rzadkowski et al.,Respondents. |
—[*1] Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,Uniondale, N.Y. [Gregory A. Cascino], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Diamond, J.), entered April 24, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants established, prima facie, through the affirmed reports of their expertorthopedist and radiologist, as well as the plaintiff's deposition testimony, that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject 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 plaintiff's submissions in opposition to the defendant'smotion were insufficient to raise a triable issue of fact. In this case, the plaintiff submitted theaffidavit of a chiropractor, who indicated that he first examined the plaintiff on April 30, 2004,nearly eight months after the accident. The plaintiff did not provide affirmations from any of thephysicians who had treated him in the months immediately following the accident, nor did hesubmit any medical records from that time period. Therefore, he failed to set forth any evidencethat he suffered from any limitations contemporaneous with the accident (see Collado v Satellite Solutions &Electronics of WNY, LLC, 56 AD3d 411 [2008]; Kurin v Zyuz, 54 AD3d 902 [2008]; Perdomo v Scott, 50 AD3d 1115[2008]; Scotto v Suh, 50 AD3d1012 [2008]; Morris vEdmond, 48 AD3d 432 [2008]). In addition, neither the plaintiff's chiropractor nor hisradiologist addressed the findings of the defendants' examining radiologist, which attributed thecondition of the plaintiff's lumbar spine to degenerative processes (see Ciordia v Luchian, 54 AD3d708 [2008]; Roman v Fast LaneCar Serv., Inc., 46 AD3d 535 [2007]; Khan v Finchler, 33 AD3d 966 [2006]). Accordingly, thedefendants were entitled to summary judgment dismissing the complaint. Mastro, J.P., Fisher,Santucci, Angiolillo and Lott, JJ., concur.