Opinion
2011-10-25
Sandra JIMENEZ, Plaintiff–Appellant,v.Nelson J. POLANCO, et al., Defendants–Respondents.
Elefterakis & Elefterakis, P.C., New York (John Elefterakis of counsel), for appellant.Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.
Elefterakis & Elefterakis, P.C., New York (John Elefterakis of counsel), for appellant.Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 21, 2010, which, in this action for personal injuries allegedly sustained when plaintiff pedestrian was struck by defendants' motor vehicle, granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not
sustain a serious injury as defined by Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law. They submitted the affirmed reports of expert physicians showing that plaintiff's injuries were the result of preexisting and degenerative conditions ( see Pommells v. Perez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). Defendants also submitted evidence showing that plaintiff was involved in another car accident years before the subject accident for which she brought a lawsuit and alleged injuries similar to those set forth in this action ( see Becerril v. Sol Cab Corp., 50 A.D.3d 261, 854 N.Y.S.2d 695 [2008] ).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's medical evidence did not address the degeneration found by defendants' physicians, and did not purport to explain why the prior accident could be ruled out as the cause of her current alleged limitations ( see Moses v. Gelco Corp., 63 A.D.3d 548, 880 N.Y.S.2d 291 [2009] ). Furthermore, without evidence that the injuries are related to the accident, “it does not avail plaintiff's 90/180–day claim that defendants' experts did not address [her] condition during the relevant period of time” ( Reyes v. Esquilin, 54 A.D.3d 615, 616, 866 N.Y.S.2d 4 [2008] ).