| Shu Chi Lam v Wang Dong |
| 2011 NY Slip Op 03915 [84 AD3d 515] |
| May 10, 2011 |
| Appellate Division, First Department |
| Shu Chi Lam, Appellant, v Wang Dong etal., Respondents. |
—[*1] Kelly, Rode & Kelly, LLP, Mineola (Susan M. Ulrich of counsel), for respondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered October 2, 2009, which,in an action for personal injuries sustained when plaintiff pedestrian was struck by a motorvehicle, granted defendants' motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law by submittingaffirmed medical reports of an orthopedist and a neurologist who concluded that plaintiff did notsustain a "permanent consequential limitation of use" or "significant limitation of use" of hishead, neck or left knee (Insurance Law § 5102 [d]). Defendants also submitted affirmedreports of two radiologists who concluded that the MRIs of plaintiff's neck, left knee and brainrevealed preexisting degenerative conditions in the neck and knee, and a prior stroke in the brain.Defendants further alluded to plaintiff's testimony that he had fractured his left knee 30 yearsago.
In opposition, plaintiff failed to raise a triable issue of fact. He presented an affirmed reportof his orthopedist, who found limited ranges of motion in the neck and left knee over one yearafter the accident, and concluded that the injuries were causally related to the accident. However,absent admissible contemporaneous evidence of alleged limitations, plaintiff cannot raise aninference that his injuries were caused by the accident (see Clemmer v Drah Cab Corp., 74 AD3d 660, 662-663 [2010]; Rivera v Honey Express Cab Corp., 70AD3d 578 [2010]). Plaintiff also failed to submit more recent examination results to rebutthe findings of defendants' experts of full ranges of motion more than a year after theorthopedist's examination. Although plaintiff's expert acknowledged that the MRI reports noteddegenerative changes in the neck and left knee and a prior stroke in plaintiff's brain, he set forthno objective basis or reason, other than the history provided by plaintiff, for concluding that theinjuries resulted from the accident (seePommells v Perez, 4 NY3d 566, 580 [2005]; Clemmer, 74 AD3d at 662).
Dismissal of plaintiff's 90/180-day claim was also appropriate, since plaintiff failed to [*2]raise a triable issue of fact as to causation or submit medical proofin support of the claim (see Amamedi vArchibala, 70 AD3d 449, 450 [2010], lv denied 15 NY3d 713 [2010]; Valentin v Pomilla, 59 AD3d 184,186-187 [2009]). Concur—Saxe, J.P., Catterson, Acosta, Abdus-Salaam andRomÁn, JJ.