Lall v. Ali

• Citation: 2012 N.Y. Slip Op. 08413,101 A.D.3d 439,955 N.Y.S.2d 327
• Parties: Roopnarine LALL, Plaintiff, Jean Ramsaroop Lall, Plaintiff–Respondent, v. Danny ALI, et al., Defendants–Appellants, Wieslaw Kalemba, Defendant–Respondent.
• Decision Date: 06 December 2012
• Court: New York Supreme Court Appellate Division

101 A.D.3d 439

955 N.Y.S.2d 327

2012 N.Y. Slip Op. 08413

Roopnarine LALL, Plaintiff,Jean Ramsaroop Lall, Plaintiff–Respondent,

v. Danny ALI, et al., Defendants–Appellants,Wieslaw Kalemba, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Dec. 6, 2012.

Marjorie E. Bornes, Brooklyn, for appellants.

Litman & Litman, P.C., East Williston (Jeffrey Litman of counsel), for Jean Ramsaroop Lall, respondent.

Law Offices of Karen L. Lawrence, Tarrytown (David Holmes of counsel), for Wieslaw Kalemba, respondent.

GONZALEZ, P.J., SWEENY, RICHTER, ROMÁN, CLARK, JJ.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered February 1, 2011, which, to the extent appealed from as limited by the briefs, denied defendants Ali and Hassan's motion for summary judgment dismissing plaintiff Jean Ramsaroop Lall's claim of serious injury of a nonpermanent nature under Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted, and, upon a search of the record, defendant Kalemba's motion for summary judgment dismissing Jean RamsaroopLall's complaint as against him is granted. The Clerk is directed to enter judgment in defendants' favor dismissing Jean Ramsaroop Lall's complaint.

The record demonstrates that plaintiff Jean Ramsaroop Lall did not sustain a serious injury of a nonpermanent nature (Insurance Law § 5102[d] ). Defendants' radiologist opined that plaintiff's alleged lumbar spine injuries were degenerative and not related to the accident, and, in opposition, plaintiff failed to refute that evidence ( see Reyes v. Esquilin, 54 A.D.3d 615, 866 N.Y.S.2d 4 [1st Dept. 2008] ). Even if the radiologist and physician's unaffirmed reports plaintiff submitted are properly considered, they are insufficient to raise an issue of fact. The radiologist did not address causation, and the physician's opinion was too general ( see Winters v. Cruz, 90 A.D.3d 412, 933 N.Y.S.2d 551 [1st Dept. 2011] ).

Because plaintiff cannot meet the serious injury threshold against the appealing defendants, she cannot meet it against the nonappealing defendant ( see Lopez v. Simpson, 39 A.D.3d 420, 835 N.Y.S.2d 98 [1st Dept. 2007] ).