Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff's injuries fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) is granted.

This matter arises out of a two vehicle accident which occurred on November 7, 2004, in the middle lane of the westbound Verrazano Narrows Bridge in Staten Island, New York. As a result, plaintiff claims to have sustained "serious" personal injuries, i.e., "a fracture; permanent loss of use [*2]of a body organ, member, function or system; a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and ...[an inability to]perform[ ] substantially all of the material acts which constitute her [sic] usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence complained of" (Plaintiff's November 14, 2005 Verified Bill of Particulars, para 24 [Defendants' Exhibit C]). More particularly, plaintiff claims to have sustained, inter alia, "herniated discs at C4-5 and C5-6, disc bulges at L2-3, L3-4, and L4-5, and quadriceps strain in the left knee with joint effusion" (id., para 6). It is undisputed that plaintiff, a professional body-builder, underwent regular treatment for an injury to his lower back prior to this accident, and that he was involved in at least one employment-related accident in 1995 which resulted in injury to his spine. It is further conceded that plaintiff required treatment for a subsequent back injury in June, 2006 (see Plaintiff's May 26, 2006 Deposition, pp 74-78, Defendants' Exhibit L; Defendant's Exhibit F).

In support of their motion for summary judgment, defendants have submitted (1) the March 23, 2005 affirmation of an orthopedic surgeon, Dr. Joseph Y. Margulies, who diagnosed plaintiff with a "resolved" strain of his cervical and lumbar spines, and of his left knee (see Defendants' Exhibit H); (2) the June 16, 2006 affirmation of a neurologist, Dr. Edward M. Weiland, who found "no neurologic residual or permanency based upon [plaintiff's] physical examination findings" (see Defendants' Exhibit I); (3) the June 19, 2006 affirmation of another orthopedic surgeon, Dr. Robert J. Orlandi, who found plaintiff free of permanent residuals relative to the sprain of his cervical and lumbar spines and of his left knee (see Defendants' Exhibit J); and (4) the April 24, 2006 affirmation of a radiologist, Dr. Scott S. Coyne, who reviewed the MRIs of plaintiff's left knee, cervical spine and lumbosacral spine, and found "longstanding" degenerative disc and facet joint changes that suggested the "possibility of significant trauma in the distant past unrelated to this accident" (see Defendants' Exhibit K).

In opposition, plaintiff attaches, inter alia, a personal affidavit detailing his subjective complaints and the course of physical therapy that he pursued (see Plaintiff's Affidavit, Plaintiff's Exhibit F). As is relevant, plaintiff concedes that he had previously "felt pain in [his] lower back" but maintains that this accident "aggravated [his] symptoms to the point that he now experiences lower back pain every day" (id. para 4). In addition, plaintiff has attached (1) the affirmed narrative report of his treating orthopedic surgeon, Dr. Daniel W. Wilen, who concludes that plaintiff "suffered permanent injuries as a result of this accident on November 7, 2004" (see Plaintiff's Exhibit C), together with MRI and EMG test results, all of which lack affirmations from the physicians who administered them (see Plaintiff's Exhibits D and E).

In the opinion of this Court, defendants have made a prima facie showing that plaintiff has not sustained a serious injury within the meaning of Insurance Law §5102(d) through the affirmations of their medical experts (see Holmes v. Hanson, 286 AD2d 750, citing Duldulao v. City of New York, 284 AD2d 296; Villalta v. Schechter, 273 AD2d 299; Nisnewitz v. Renna, 273 AD2d 210; Guzman v. Michael Mgt., 266 AD2d 508; Kosto v. Bonelli, 255 AD2d 557). Accordingly, it became incumbent upon plaintiff to come forward with evidence demonstrating the existence of a triable issue of fact that he sustained a causally related serious injury (see Gaddy v. Eyler, 79 NY2d 955).

Here, plaintiff has failed to meet this burden, as he has failed to come forward with evidence addressing the claimed lack of causation which was found by defendants' experts and is readily [*3]apparent from his medical records and deposition testimony. He has also failed to explain his two-year gap in treatment (see Pommells v. Perez, 4 NY3d 566). The failure of plaintiff's expert to address, inter alia, the findings of defendants' medical experts that his injuries were longstanding and/or degenerative in nature

renders his opinion on causation speculative (see Baksh v. Shabi, 32 AD3d 525).

Accordingly, it is

ORDERED, that defendants' motion for summary judgment is granted, and it is further

ORDERED, that the Clerk enter judgment in defendants' favor dismissing the complaint.

E N T E R,

Dated:March 2, 2007/s/ Hon., Philip G. Minardo

J.S.C.