| Santiago v Nimbus Serv. Corp. |
| 2008 NY Slip Op 50253(U) [18 Misc 3d 136(A)] |
| Decided on February 14, 2008 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendants Nimbus Service Corp., Arenard Alcena and Rafael Puentes appeal from an order
of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered October
20, 2006, which denied their cross motions for summary judgment.
Per Curiam.
Order (Ben R. Barbato, J.), entered October 20, 2006, reversed, with $10 costs, motions granted and complaint dismissed as against defendants Nimbus Service Corp., Arenard Alcena and Rafael L. Puentes. The Clerk is directed to enter judgment accordingly.
Defendants demonstrated prima facie entitlement to judgment by submitting competent medical evidence that plaintiff did not sustain serious injury (see Insurance Law § 5102[d]) as a result of the 1999 vehicular accident. In opposition, plaintiffs failed to satisfy their evidentiary burden of submitting "objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal" (Pommells v Perez, 4 NY3d 566, 574 [2005]). Significantly, the injured plaintiff conceded in his bill of particulars and at a deposition that he had sustained injury to his cervical spine in a prior work-related accident, and an MRI conducted shortly after the subject vehicular accident showed degenerative cervical disc disease. Once a defendant has presented evidence of a preexisting injury or degeneration, it is incumbent upon the plaintiff in a serious injury case to present proof to meet the defendant's asserted lack of causation (see Brewster v FTM Servo, Corp., 44 AD3d 351 [2007]). While plaintiff's treating chiropractor alleged that plaintiff's current medical problems were not related to a later 2004 accident, he did not adequately explain how plaintiff's medical problems, in light of his past medical history, are causally related to the subject accident (see Styles v Joseph, 32 AD3d 212 [2006]). Given our holding on the threshold serious injury issue, it is unnecessary to reach defendants' additional arguments regarding liability. [*2]
THIS CONSTITUTES THE DECISION AND ORDER
OF THE COURT.
Decision Date: February 14, 2008