DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION GRANTED ONLY TO EXTENT OF DISMISSING PLAINTIFF'S "90/180-DAY CLAIM" BECAUSE NO ADMISSIBLE OBJECTIVE MEDICAL EVIDENCE IN MOTION

Court: Supreme Court, Appellate Term, New York, First Department

Case: Benjamin Vializ v. Nana Anoah and Kobblah Wise

Date: March 14, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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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 Sec. 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]).

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