People v. Otero
852 N.Y.S.2d 88
N.Y. App. Div.
2008
Check Treatment

Mayra Santana, Plaintiff, and Geraldo Lopez, Appellant, v Nazam Khan, Respondent, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department

May 8, 2008

851 NYS2d 515

Mary Ann Brigantti-Hughes, J.

Judgment, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about December 6, 2006, dismissing the complaint on behalf of plaintiff-appellant pursuant to an order that granted defendant‘s motion for summary judgment as against plaintiff-appellant for lack of a serious injury as required by Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendant‘s medical evidence in support of the motion showed that appellant has normal range of motion in his cervical and lumbar spine and shoulders and that he did not otherwise sustain a serious injury as a result of the accident, and therefore satisfied defendant‘s initial burden on the motion “notwithstanding the existence of MRI reports indicating that [appellant] had herniated or bulging discs” (). Summary judgment was properly granted as appellant‘s opposition failed to adduce evidence of a limitation of range based on objective medical findings made within a reasonable time after the accident (see ; ). In addition, in response to defendant‘s showing of disc dessication and other degenerative findings in appellant‘s spinal MRIs, appellant‘s expert merely speculated that the injuries were causally related to the subject accident (see ; ). Concur—Lippman, P.J., Andrias, Nardelli, Buckley and Acosta, JJ.