| Kerr v Klinger |
| 2010 NY Slip Op 02655 [71 AD3d 593] |
| March 30, 2010 |
| Appellate Division, First Department |
| Azeriah Kerr, Appellant, v Miriam S. Klinger,Respondent. |
—[*1] Kelly, Rode & Kelly, LLP, Mineola (Susan M. Ulrich of counsel), for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered April 1, 2009, whichgranted defendant's motion for summary judgment dismissing the complaint for lack of a seriousinjury, unanimously affirmed, without costs.
Defendant established her prima facie entitlement to summary judgment by submittingevidence, including the affirmed reports of a radiologist, who, upon reviewing the MRI filmstaken after plaintiff's accident, concluded that the disc bulges and/or herniations revealed thereinwere the result of degenerative disc disease and not caused by the automobile accident at issue(see D'Ariano v Meldish, 68 AD3d 640 [2009]; Lopez v American United Transp.,Inc., 66 AD3d 407 [2009]).
In opposition, plaintiff's expert provided insufficient evidence to raise an issue of fact as to acausal connection between accident and injury (see Lopez, 66 AD3d 407 [2009]).Plaintiff also failed to raise triable issues of fact as to whether he was incapacitated fromperforming substantially all of his usual and customary activities for at least 90 of the first 180days after the accident, having failed to offer the requisite competent medical proof tosubstantiate his claim (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Moses vGelco Corp., 63 AD3d 548 [2009]). Concur—Saxe J.P., Catterson, Moskowitz,Freedman and RomÁn, JJ.