Luciano v. Luchsinger

• Decision Date: 11 December 2007
• Docket Number: 2006-10298.
• Citation: 46 A.D.3d 634,847 N.Y.S.2d 622,2007 NY Slip Op 09738
• Parties: ANGELINA M. LUCIANO et al., Appellants, v. JOHN D. LUCHSINGER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 634

847 N.Y.S.2d 622

2007 NY Slip Op 09738

ANGELINA M. LUCIANO et al., Appellants, v. JOHN D. LUCHSINGER et al., Respondents.

2006-10298.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 11, 2007.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 18, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The Supreme Court correctly concluded that the defendants met their prima facie burden by establishing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]).

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs principally relied upon the affidavit of Dr. David BenEliyahu and the affirmations of Dr. Arvind Chopra. Initially, the affirmations of Dr. Chopra, along with his reports, failed to raise a triable issue of fact. Dr. Chopra's conclusions that the plaintiffs' injuries were the result of the subject accident were based on speculation. Dr. Chopra failed to address in either his affirmations or reports the fact that both plaintiffs had pre-existing degenerative conditions in their cervical and/or lumbar spines. Moreover, he failed to acknowledge that the plaintiff Angelina M. Luciano (hereinafter Angelina) had been involved in a prior car accident in which she injured her back and neck. Those omissions rendered speculative his conclusions that the plaintiffs' cervical and lumbar spine injuries were the result of the subject accident (see Moore v Sarwar, 29 AD3d 752 [2006]; Giraldo v Mandanici, 24 AD3d 419 [2005]).

Dr. BenEliyahu also failed to adequately address in his affidavit the findings of pre-existing degenerative disc disease in Angelina's cervical and lumbar spine, and the degeneration in the lumbar spine of the plaintiff Vincent Luciano (hereinafter Vincent). This rendered speculative his findings that the injuries and limitations in Vincent's lumbar spine, and the injuries and...