| Jimenez v Polanco |
| 2011 NY Slip Op 07508 [88 AD3d 604] |
| October 25, 2011 |
| Appellate Division, First Department |
| Sandra Jimenez, Appellant, v Nelson J. Polanco et al.,Respondents. |
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Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 21, 2010, which, inthis action for personal injuries allegedly sustained when plaintiff pedestrian was struck bydefendants' motor vehicle, granted defendants' motion for summary judgment dismissing thecomplaint on the ground that plaintiff did not sustain a serious injury as defined by InsuranceLaw § 5102 (d), unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law. They submitted theaffirmed reports of expert physicians showing that plaintiff's injuries were the result ofpreexisting and degenerative conditions (see Pommells v Perez, 4 NY3d 566, 580 [2005]). Defendants alsosubmitted evidence showing that plaintiff was involved in another car accident years before thesubject accident for which she brought a lawsuit and alleged injuries similar to those set forth inthis action (see Becerril v Sol CabCorp., 50 AD3d 261 [2008]).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's medical evidence didnot address the degeneration found by defendants' physicians, and did not purport to explain whythe prior accident could be ruled out as the cause of her current alleged limitations (see Moses v Gelco Corp., 63 AD3d548 [2009]). Furthermore, without evidence that the injuries are related to the accident, "itdoes not avail plaintiff's 90/180-day claim that defendants' experts did not address [her] conditionduring the relevant period of time" (Reyes v Esquilin, 54 AD3d 615, 616 [2008]).Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Richter, JJ.