| Canelo v Genolg Tr., Inc. |
| 2011 NY Slip Op 02064 [82 AD3d 584] |
| March 22, 2011 |
| Appellate Division, First Department |
| Domingo Canelo et al., Respondents, v Genolg Transit,Inc., et al., Appellants. |
—[*1] Gerard DeCapua, Rockville Centre, for respondents.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered July 15, 2010, whichdenied defendants' motion for summary judgment dismissing the complaint on the ground thatplaintiff Gilberto Canelo did not sustain a serious injury within the meaning of the InsuranceLaw, unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment accordingly.
Defendants established their entitlement to summary judgment dismissing the 90/180-dayclaim based upon, inter alia, plaintiff's deposition testimony that he had not been confined to bedand did not miss work following the accident (see Lopez v Abdul-Wahab, 67 AD3d 598 [2009]). Plaintiff failedto raise a triable issue of fact as to whether he was incapacitated from performing all of his usualand customary activities for at least 90 out of 180 days following the accident.
The failure of defendants' experts to review plaintiff's medical records does not require denialof defendants' motion with regard to the claim of permanent injury (see DeJesus v Paulino, 61 AD3d605, 607 [2009]). The record establishes that defendants' neurologist detailed the specificobjective tests he used in his personal examination of plaintiff, which revealed full range ofmotion, and their radiologist found, upon review of plaintiff's MRI films, no evidence of discbulging or herniation.
In opposition, plaintiff failed to raise a triable issue of fact. Although plaintiff's radiologistopined that plaintiff suffered permanent injuries that were caused by the car accident, andprovided quantifications for loss in range of motion, he failed to address the findings ofdefendants' radiologist that plaintiff's spinal condition was the result of preexisting degenerativechanges (see Delfino v Luzon, 60AD3d 196, 198 [2009]). Plaintiff's expert also failed to address plaintiff's prior motorvehicle accident in which he injured his cervical and lumbar spine, which renders his conclusionas to causation speculative (see ZhijianYang v Alston, 73 AD3d 562, 563 [2010]). Furthermore, plaintiff's treating physicianfailed to quantify any loss in the ranges of motion of the cervical spine at plaintiff's lastexamination, and the physician's finding [*2]of a 9% cervicaldisability and a 10% lumbar disability were not of sufficient magnitude to qualify as a"significant" or "important" limitation of use (see Arrowood v Lowinger, 294 AD2d 315,316 [2002]; Bandoian v Bernstein, 254 AD2d 205 [1998]). Concur—Tom, J.P.,Andrias, Sweeny, Moskowitz and Renwick, JJ.