| Singh v City of New York |
| 2010 NY Slip Op 02772 [71 AD3d 1121] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Gurdev Singh, Respondent, v City of New York,Defendant, and Sadiq Fazel et al., Appellants. |
—[*1] The Law Firm of Silvia M. Surdez, P.C., Astoria, N.Y. (Kevin J. Perez of counsel), forrespondent.
In an action to recover damages for personal injuries and injury to property, the defendantsSadiq Fazel and JDR Taxi appeal from an order of the Supreme Court, Queens County (Flug, J.),entered July 1, 2009, which denied their motion, in effect, for summary judgment dismissing thecause of action to recover damages for personal injuries insofar as asserted against them on theground that the plaintiff 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 motion of the defendantsSadiq Fazel and JDR Taxi, in effect, for summary judgment dismissing the cause of action torecover damages for personal injuries insofar as asserted against them is granted.
The defendants Sadiq Fazel and JDR Taxi met their 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 affirmation of Dr. Sawhey Harhash,and the affidavits and report of Dr. Coral Elcock, were insufficient to raise a triable issue of factbecause they did not address the finding of the defendants' radiologist that magnetic resonanceimagings of the plaintiff's cervical spine, lumbar spine, and left shoulder, taken shortly after theaccident, revealed only degenerative changes which were not caused by the subject accident.Thus, the conclusions of the plaintiff's experts that the injuries and limitations they noted duringtheir respective examinations were the result of the subject accident were speculative (seeCasimir v Bailey, 70 AD3d 994 [2010]; Nicholson v Allen, 62 AD3d 766, 767[2009]; Chery v Jones, 62 AD3d 742, 743 [2009]; Shmerkovich v Sitar Corp., 61AD3d 843 [2009]; Pamphile v Bastien, 61 AD3d 659, 660 [2009]). Furthermore, theplaintiff's own affidavit was insufficient to raise a triable issue of fact (see Acosta vAlexandre, 70 AD3d 735 [2010]; Maffei v Santiago, 63 AD3d 1011, 1012 [2009];Luizzi-Schwenk v Singh, 58 AD3d 811, 812 [2009]; Sealy v Riteway-1, Inc., 54AD3d 1018 [2008]).
The plaintiff also failed to submit competent medical evidence that the injuries he allegedlysustained in the subject accident rendered him unable to perform substantially all of his usualand customary activities for not less than 90 days of the first 180 days subsequent to the accident(see Casimir v Bailey, 70 AD3d 994 [2010]; Shmerkovich v Sitar Corp., 61AD3d at 843; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Covello, Eng,Chambers and Sgroi, JJ., concur.