Riviello v. Kambasi

Mar 17, 2011
Versions:82 A.D.3d 543
918 N.Y.2d 475

Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting a radiologist‘s affirmed report that plaintiff‘s MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures (see Valentin v Pomilla, 59 AD3d 184, 186 [2009]).

In opposition, plaintiff failed to raise a triable issue of fact (id.; see also Jimenez v Rojas, 26 AD3d 256, 257 [2006]; Diaz v Anasco, 38 AD3d 295 [2007]) by not refuting defendants’ evidence of the preexisting degenerative condition of the lumbar and cervical spine. In fact, some of plaintiff‘s experts also identify the degenerative condition. Although one of plaintiff‘s experts, Dr. Shein, identifies the cervical spine degeneration as having been aggravated by the accident, his failure to explain why he ruled out degenerative changes as the cause of plaintiff‘s spinal injuries renders his opinion that they were caused by the accident speculative (see Valentin, 59 AD3d at 186).

Moreover, absent any objective medical evidence that her injuries were caused by the accident, plaintiff‘s statements that she was limited in her ability to perform the normal activities of her life were insufficient to establish her 90/180-day claim. Further, despite plaintiff‘s claim that she was confined to bed and home from the date of the accident until 10 weeks after the accident, plaintiff fails to offer competent medical proof that she could not perform substantially all her daily activities for 90 of the first 180 days following the accident because of an injury or impairment caused by the accident (Linton v Nawaz, 62 AD3d 434 [2009], affd 14 NY3d 821 [2010]; see also Hutchinson v Beth Cab Corp., 207 AD2d 283 [1994]).

We have considered plaintiff‘s remaining arguments and find them without merit. Concur—Gonzalez, P.J., Tom, Acosta, Richter and Román, JJ.