Summary
affirming finding that "defendants [had] met their threshold burden of demonstrating prima facie the absence of a 'serious injury' . . . by submitting, inter alia, the affirmed reports of a neurologist, who examined plaintiff and found him neurologically normal"
Summary of this case from Rivera v. United StatesOpinion
570783/11
03-14-2012
Benjamin Vializ, Plaintiff-Respondent, v. Nana Anoah and Kobblah Wise, Defendants, - and - Ramon A. Nunez and B.S. Gonzalez, Defendants-Appellants.
PRESENT: , J.P., Shulman, Torres, JJ
Defendants Ramon A. Nunez and B.S. Gonzalez appeal from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered July 19, 2011, which denied their motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Raul Cruz, J.), entered July 19, 2011, modified by granting defendants-appellants' motion to the extent of dismissing plaintiff's 90/180-day claim as against all defendants; as modified, order affirmed, without costs.
Defendants met their threshold burden of demonstrating prima facie the absence of a "serious injury" (see Insurance Law § 5102[d]), by submitting, inter alia, the affirmed reports of a neurologist, who examined plaintiff and found him neurologically normal, and a radiologist, who, upon review of MRI films of plaintiff's lumbar spine, discerned no abnormality or injury (see Lavali v Lavali, 89 AD3d 574, 575 [2011]; Thompson v Abbasi, 15 AD3d 95, 96 [2005]). In opposition, plaintiff raised triable issues of fact by way of contemporaneous evidence of a disc injury observed on a lumbar MRI study taken within two weeks of the March 2005 vehicular accident, as well as his treating doctor's report of quantified restrictions of motion, spasm and other abnormal findings found six weeks after the accident — symptoms which were still observed at an examination of plaintiff performed five years after the accident (see Perl v Meher, 18 NY3d 208, 217 [2011]).
However, plaintiff's showing with respect to his 90/180-day claim, which included no admissible objective medical evidence, was insufficient to withstand defendant-appellants' summary judgment motion (see De La Cruz v Hernandez, 84 AD3d 652, 653 [2011]). Upon searching the record (see CPLR 3212[b]), we grant defendants Anoah and Wise summary judgment dismissal of plaintiff's 90-180 claim, since he cannot meet the threshold for serious injury in that category (see DeJesus v Paulino, 61 AD3d 605, 608 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.