| Arroyo v Morris |
| 2011 NY Slip Op 05624 [85 AD3d 679] |
| June 30, 2011 |
| Appellate Division, First Department |
| Dennis Arroyo, Appellant, v Horace Morris, Defendant,and Juldeh Bah et al., Respondents. |
—[*1] Baker McEvoy Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 19, 2010,which granted defendants Juldeh Bah's and Nigeriya Car's motion for summary judgmentdismissing the complaint on the ground that plaintiff did not suffer a "serious injury" within themeaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants-appellants established prima facie that plaintiff did not sustain a serious injury bysubmitting a radiologist's affirmed reports stating that the MRI films of the lumbar spine revealedevidence of degenerative disc disease predating the accident and no evidence of recent traumaticor causally related injury, and that the MRI films of the left knee revealed evidence of apreexisting chronic condition and no radiographic evidence of recent traumatic or causallyrelated injury (see Valentin vPomilla, 59 AD3d 184, 186 [2009]). In opposition, plaintiff failed to refute defendants'evidence of a preexisting degenerative condition of the lumbar spine or a preexisting chroniccondition of the left knee, and therefore failed to raise an inference that injury to either the spineor the knee was caused by the accident (see id.; see also Jimenez v Rojas, 26 AD3d 256 [2006]; Diaz v Anasco, 38 AD3d 295[2007]). Further, none of plaintiff's doctors made any reference to either the degenerative or thechronic condition; without an explanation for ruling out these conditions as the cause ofplaintiff's injuries, the doctors' opinions that the injuries were caused by the accident arespeculative (see Valentin, 59 AD3d at 186).
As there is no objective medical evidence that plaintiff's injuries were caused by the accident,plaintiff's statement that he was out of work for nine months is insufficient to establish his90/180-day claim (see Linton vNawaz, 62 AD3d 434, 443 [2009], affd 14 NY3d 821 [2010]; see alsoHutchinson v Beth Cab Corp., 207 AD2d 283 [1994]). Concur—Andrias, J.P., Saxe,Moskowitz, Richter and Manzanet-Daniels, JJ.