Marsh v. City of New York

• Decision Date: 21 April 2009
• Docket Number: 377.
• Parties: JAMES MARSH, Respondent, v. CITY OF NEW YORK et al., Defendants, and MELIDO CABRERA et al., Appellants.
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 552

877 N.Y.S.2d 65

2009 NY Slip Op 03049

JAMES MARSH, Respondent, v. CITY OF NEW YORK et al., Defendants, and MELIDO CABRERA et al., Appellants.

377.

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

Decided April 21, 2009.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 18, 2008, which, insofar as appealed from as limited by the briefs, denied defendants-appellants' motion for summary judgment dismissing the complaint for lack of a serious injury under the No-Fault Law, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of all defendants, dismissing the complaint in its entirety.

Defendants met their burden of establishing lack of causation by their expert's opinion that plaintiff's injuries were degenerative. The only opinion on causation submitted by plaintiff that was based on admissible evidence, that of his treating chiropractor, failed to address appellants' nonconclusory expert opinion that plaintiff's allegedly permanent cervical and lumbar conditions are degenerative in nature (see Valentin v Pomilla, 59 AD3d 184, 185 [2009]); indeed, the chiropractor did not purport to provide any reason for his conclusion that such conditions were caused by the accident. Absent evidence sufficient to raise an issue of fact as to causation, plaintiff's 90/180 claim also lacks merit (see id. at 186). We dismiss the complaint as against all defendants upon a search of the record pursuant to CPLR 3212 (b) (see Rose v Citywide Auto Leasing, Inc., 60 AD3d 520 [2009] [as reflected in the record, action dismissed against all defendants, including those who had not moved for summary judgment], citing Lopez v Simpson, 39 AD3d 420, 421 [2007] [action dismissed against nonappealing defendants who had moved for summary judgment]).

Concur — FRIEDMAN, J.P., SWEENY, CATTERSON, RENWICK and FREEDMAN, JJ.