Lemos v Giacomo Mgt., Inc.

Mar 24, 2011
4618 103174/07
Versions:82 AD3d 602
2011 NY Slip Op 02126

Rafael E. Lemos, Respondent, v Giacomo Management, Inc., et al., Appellants.

Feinman & Grossbard, P.C., White Plains (Steven N. Feinman of counsel), for appellants.

Dinkes & Schwitzer, P.C., New York (Naomi J. Skura of counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered September 24, 2010, which, insofar as appealed from, as limited by the briefs, denied defendant corporation‘s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted in its entirety, and the complaint dismissed as to all defendants. The Clerk is directed to enter judgment accordingly.

Defendant corporation established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It submitted persuasive evidence of pre-existing degenerative bone disease in plaintiff‘s left knee that predated the accident, by way of a radiologist‘s affirmed report detailing the findings in plaintiff‘s MRI film, as well as plaintiff‘s physician‘s findings of degenerative disease. In opposition, plaintiff failed to meet his burden to adduce evidence rebutting the asserted lack of causation (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Valentin v Pomilla, 59 AD3d 184, 186 [2009]).

In light of the foregoing, defendant‘s argument regarding plaintiff‘s gap in treatment need not be considered. Concur—Gonzalez, P.J., Catterson, Richter, Abdus-Salaam and RomÁn, JJ.