| Torres v Triboro Servs., Inc. |
| 2011 NY Slip Op 03189 [83 AD3d 563] |
| April 21, 2011 |
| Appellate Division, First Department |
| Fabio Torres, Appellant, v Triboro Services, Inc.,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovitz, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered March 24, 2010, which, interalia, in this action for personal injuries sustained in a motor vehicle accident, granted defendant'smotion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that plaintiff did not suffer a "permanent consequential limitation of use of a bodyorgan or function" or a "significant limitation of use of a body function or system" (InsuranceLaw § 5102 [d]). Defendant submitted the affirmed reports of a radiologist, who reviewedthe MRI films and found degenerative changes in the cervical and lumbar spines and left knee,and of an orthopedist, who concluded that the degenerative changes were consistent withplaintiff's age, occupation and obesity, and found full ranges of motion and negative straight-legand McMurray tests based on his examination of plaintiff (see DeJesus v Paulino, 61 AD3d 605 [2009]).
In opposition, plaintiff presented the affirmation of his treating physician, who found limitedranges of motion, and positive straight-leg raising test and McMurray test, when he first treatedplaintiff on the day of the accident. Upon examining plaintiff 2½ years later, and findingthat he still exhibited limited ranges of motion and a positive McMurray sign, the physicianconcluded that the injuries were permanent in nature. Although plaintiff's medical evidence wassufficient to raise triable issues of fact as to whether plaintiff's claimed injuries were serious (see Byong Yol Yi v Canela, 70 AD3d584, 585 [2010]), it failed to raise a triable issue of fact as to causation, given that plaintiff'sphysician failed to address the non-conclusory opinions of defendant's expert that the newconditions revealed in the 2007 MRI's were degenerative in nature (see Pommells v Perez, 4 NY3d566, 580 [2005]; Valentin vPomilla, 59 AD3d 184 [2009]).
The motion court also correctly granted defendant's motion for summary judgment withrespect to the 90/180-day claim. Defendant met its prima facie burden by submitting plaintiff'sverified bill of particulars stating that he was not confined to his bed or home in connection withthe accident and that he was able to continue working from the date of the accident (see Lopez v [*2]Abdul-Wahab, 67 AD3d 598 [2009]; Ortiz v Ash Leasing, Inc. 63 AD3d556 [2009]). The statement in the affirmation of plaintiff's physician, that plaintiff wasunable to perform most of his normal daily activities for more than 90 of the 180 days followingthe accident, was based on plaintiff's unsubstantiated claim that he could no longer perform the"heavy physical labor" associated with his job, and is insufficient to raise a triable issue of fact(see Guadalupe v Blondie Limo,Inc., 43 AD3d 669 [2007]). Concur—Friedman, J.P., Sweeny, DeGrasse,Abdus-Salaam and RomÁn, JJ.