Expert report establishes grounds for summary judgment

Juan Aviles v. Heriberto Bermejo, Index No. 114452/2011 (Sup.Ct. N.Y.Cty. March 21, 2014)

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Justice Arlene P. Bluth, J.S.C., granted summary judgment to an owner-operator of a vehicle, finding that the defendant had established that the plaintiff had not suffered a "serious injury" within the meaning of Insurance Law section 5012(d).

Defendant's proof included the plaintiff's MRI taken a few days after the accident, which established that the plaintiff had shown degenerative bulges in the cervical and lumbar spine. An orthopedist's report submitted on behalf of the defendant confirmed degenerative changes in the plaintiff's spine. Defendant also submitted the plaintiff's deposition testimony which indicated he was confined to his bed or home for only three weeks after the accident. In light of these admissions, plaintiff could not demonstrate an injury precluding 90 days of normal activity during the first 180 days following the accident. Defendant showed that the plaintiff's medical report was unsupported and conclusory. While it theorized that this accident, and not a prior accident, caused certain range-of-motion restrictions, nowhere did it indicate that the plaintiff was pain-free shortly before the accident. Plaintiff did not rebut the showing that his spine changes were degenerative.

AGF&J partner Irwin D. Miller argued the motion, with associate Dennis J. Monaco on the brief.