| Mitrotti v Elia |
| 2012 NY Slip Op 00042 [91 AD3d 449] |
| Jnury 5, 2012 |
| Appellate Division, First Department |
| Roberto Mitrotti, Appellant, v Frank J. Elia,Respondent. |
—[*1] McCabe, Collins, McGeough & Fowler, LLP, Carle Place (Patrick M. Murphy of counsel),for respondent.
Order, Supreme Court, New York (George J. Silver, J.), entered August 17, 2010, which, inthis action for personal injuries sustained in a motor vehicle accident, granted defendant's motionfor summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established his entitlement to judgment as a matter of law by demonstrating thatplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).Defendant submitted an affirmed report of an orthopedist finding normal ranges of motion inplaintiff's cervical and lumbar spine, and left knee (see Porter v Bajana, 82 AD3d 488 [2011]). Defendant alsosubmitted the affirmed report of a radiologist who opined that changes shown in MRIs of thethen 64-year-old plaintiff were degenerative, and that the condition of his spine was unchangedsince 2002, when MRIs were taken following a prior motor vehicle accident.
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's medical affirmationsdid not provide an opinion as to causation (see Jackson v Delossantos-Diaz, 82 AD3d 489 [2011]), and whileplaintiff has admitted that he was involved in another accident two years before the one at issue,his doctors ignored the effect of that accident on the purported neck and back symptomsattributable to the subject accident (seeFarrington v Go On Time Car Serv., 76 AD3d 818, 818 [2010] ["even where there isobjective medical proof of an injury, summary dismissal of a serious injury claim may beappropriate when additional contributory factors, such as preexisting conditions, interrupt thechain of causation between the accident and the claimed injury"]). Plaintiff also failed to submitan affirmation of any medical expert showing current range-of-motion deficits to rebut thefindings of defendant's medical experts.
Dismissal of the 90/180-day claim was also proper. Plaintiff's bill of particulars stated that hewas confined to bed for two weeks and home for two months following the accident (see [*2]Williams v Baldor Specialty Foods, Inc., 70 AD3d 522,523 [2010]).
We have considered plaintiff's remaining contentions, and find them unavailing.Concur—Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels and RomÁn, JJ.