Angelesv.Versace Inc.

Supreme Court, Appellate Division, First Department, New York.Jan 26, 2015
2 N.Y.S.3d 448 (N.Y. App. Div. 2015)
2 N.Y.S.3d 448124 A.D.3d 5442015 N.Y. Slip Op. 648

01-26-2015

Rafael ANGELES, Plaintiff–Appellant, v. VERSACE INC., et al., Defendants–Respondents.

Ferro Kuba Mangano Sklyar, P.C., New York (Kenneth Mangano of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.


Ferro Kuba Mangano Sklyar, P.C., New York (Kenneth Mangano of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, for respondents.

MAZZARELLI, J.P., RENWICK, DeGRASSE, RICHTER, CLARK, JJ.

Opinion Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered October 2, 2013, which granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law § 5102(d), and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Defendants made a prima facie showing that plaintiff did not sustain an injury involving a “significant” or “permanent consequential” limitation of use of his lumbar spine.

However, plaintiff's submissions do not create an issue of fact. Plaintiff's expert, while opining that the accident caused an injury, failed to address defendants' evidence of degeneration in the x-ray reports of the lumbar spine, which was found in his own records (see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept.2014] ; Rosa v. Mejia, 95 A.D.3d 402, 405, 943 N.Y.S.2d 470 [1st Dept.2012] ).

Since there was no evidence of causation, plaintiff cannot establish his 90/180–day injury claim (see Linton v. Gonzales, 110 A.D.3d 534, 535, 974 N.Y.S.2d 350 [1st Dept.2013] ; Barry v. Arias, 94 A.D.3d 499, 500, 942 N.Y.S.2d 57 [1st Dept.2012] ).

Given the lack of serious injury, the issue of liability is academic (see Hernandez v. Adelango Trucking, 89 A.D.3d 407, 408, 931 N.Y.S.2d 317 [1st Dept.2011] ).