| Alozie v Tempesta & Son Co., Inc. |
| 2011 NY Slip Op 03118 [83 AD3d 535] |
| April 19, 2011 |
| Appellate Division, First Department |
| Victoria Alozie, Appellant, v Tempesta & Son Co., Inc., etal., Respondents. |
—[*1] Galvano & Xanthakis, P.C., New York (Matthew Kelly of counsel), forrespondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 8, 2010,which granted defendants' motion for summary judgment dismissing the complaint on thethreshold issue of serious injury within the meaning of Insurance Law § 5102 (d),unanimously modified, on the law, to deny the motion as to plaintiff's claim of permanent injuryto her cervical spine and her claim of injury of a nonpermanent nature, and otherwise affirmed,without costs.
Defendants established prima facie that the injuries to plaintiff's cervical and lumbar spinewere not causally related to the instant motor vehicle accident, by submitting the affirmed reportof a radiologist who opined that plaintiff's MRI films revealed degenerative disc disease, anddeposition testimony and other evidence showing that plaintiff had been involved in two earlieraccidents, the second one just four months before the instant accident, in which she sustainedidentical injuries to her cervical and lumbar spine (see Becerril v Sol Cab Corp., 50 AD3d 261, 261 [2008]). Inopposition, however, plaintiff presented evidence that her cervical injuries were causally relatedto the instant accident, and were different from the injuries that predated the instant accident (see Linton v Nawaz, 62 AD3d434, 443 [2009], affd 14 NY3d 821 [2010]).
Defendants failed to meet their burden on plaintiff's 90/180-day claim, since their [*2]experts' reports were based on examinations of plaintiff conductednearly two years after the instant accident (see e.g. Quinones v Ksieniewicz, 80 AD3d 506, 506-507 [2011]; Feaster v Boulabat, 77 AD3d 440,441 [2010]). Concur—Tom, J.P., Mazzarelli, Acosta, Renwick and Freedman, JJ.