| Nieves v Castillo |
| 2010 NY Slip Op 04926 [74 AD3d 535] |
| June 10, 2010 |
| Appellate Division, First Department |
| Lourdes Nieves, Appellant, v Jose Castillo et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 30, 2009,which granted defendants' motion for summary judgment dismissing the complaint for failure toshow serious injury, unanimously affirmed, without costs.
Defendants carried their prima facie burden regarding plaintiff's claim of permanent injuries;contrary to plaintiff's assertion, defendants' medical expert's findings in this regard were basedon objective tests. In opposition, plaintiff failed to raise an issue of fact, since one of herphysicians did not opine as to causation of her claimed injuries (see Gibbs v Hee Hong, 63 AD3d559, 559 [2009]), the other's conclusion that the accident had aggravated a degenerativecondition of her cervical spine was unexplained and speculative (see Gorden v Tibulcio, 50 AD3d460, 464 [2008]), and neither addressed defendants' medical expert's normal findingsregarding plaintiff's lumbar spine, shoulder, and knee (see Glover v Capres Contr. Corp., 61 AD3d 549, 549 [2009]). Themedical opinions submitted in support of plaintiff's supplemental showing, based on MRIs andexaminations more than four years after the accident, were too remote to be probative (see Pou v E&S Wholesale Meats, Inc.,68 AD3d 446, 447 [2009]).
Defendants carried their burden regarding plaintiff's 90/180-day claim based on herdeposition testimony that she missed only six weeks of work (see Williams v Baldor Specialty Foods,Inc., 70 AD3d 522, 522-523 [2010]; Byong Yol Yi v Canela, 70 AD3d 584, 584 [2010]). In opposition,plaintiff failed to raise an issue of fact, since she did not submit probative evidence of causation(see Amamedi v Archibala, 70AD3d 449, 450 [2010]), medical evidence of her claimed inability to perform certain dailyactivities (see Weinberg v Okapi Taxi, Inc., 73 AD3d [*2]439 [2010]), or documentation from her employer (see Ortiz v Ash Leasing, Inc., 63AD3d 556, 557 [2009]). Concur—Tom, J.P., Andrias, Catterson, Moskowitz andAcosta, JJ.