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Plaintiffs oppose the instant motion…cont

Defendant’s motion seeking summary judgment is hereby granted. Given the allegations made by plaintiffs within their bill of particulars and upon a review of the evidence submitted, the only categories of serious personal injury applicable to the instant action are a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment which prevented plaintiffs from performing substantially all of the material acts which constituted their usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

With regard to the category of serious injury resulting in a significant and permanent injury, the first two mentioned above, despite plaintiffs’ contention to the contrary, the evidence submitted by defendant establishes prima facie entitlement to summary judgment. With regard to all plaintiffs, sworn reports establish that all the injuries asserted by the plaintiffs were degenerative in nature, pre-existed the accident herein, and were not the result of trauma. He examined the plaintiffs, and more importantly reviewed their medical records, some of which were which evinced treatment contemporaneous to the accident alleged. Based on his examination and his review of records, concludes that the injuries herein were not related to the accident herein. Thus, defendant establishes prima facie entitlement to summary judgment. With regard to plaintiffs’ injuries under the 90/180 category, the non-permanent injury category of serious injury, defendant establishes prima facie entitlement to summary judgment. It is well settled that examinations conducted years after the accident are not probative with regard to the 90/180 category of serious injury and do not entitle a defendant to summary judgment with regard to the same.

However, it is equally well settled that a defendant can establish prima facie entitlement to summary judgment with regard to 90/180 category absent medical evidence, by citing to evidence, such as plaintiff’s own testimony, demonstrating that he was not prevented from performing all of the substantial activities constituting plaintiff’s customary daily activities for the prescribed period. Once defendant meets his burden, plaintiff must come forward with competent medical evidence demonstrating his inability to perform substantially all of his daily activities for not less than 90 of the first 180 days as a result of the accident alleged. In this case, defendant establishes prima facie entitlement to this category of injury for several reasons. First, insofar as causation is germane to any serious injury claim, permanent or non-permanent, defendant establishes prima facie entitlement to summary judgment on the 90/180 category for the very same reason just discussed with regard to the permanent category of injury, namely, that he establishes that none of the injuries sustained were caused by the accident herein. Second, with his sworn reports, defendant negates the existence of a serious injury contemporaneous with the accident herein. He reviewed plaintiff’s medical records, in particular examination of the plaintiffs a day after the accident herein. Said examination yielded a diagnosis of sprains and strains for all plaintiffs. It is well settled that strains/sprains, are not serious as a matter of law. Thus, insofar as the injuries diagnosed are not serious as a matter of law, defendant establishes the absence of a medically determined injury and thus establishes prima facie entitlement to summary judgment with regard to the 90/180 category of serious injury.

Notwithstanding the foregoing, plaintiffs fail to avert summary judgment insofar as they fail to rebut defendant’s medical evidence establishing that the injuries sustained by plaintiffs were not related to the accident herein. A plaintiff’s failure to rebut a defendant’s prima facie showing that the injuries sustained by plaintiff pre-dated the accident or caused by some other event or condition warrants dismissal of the action.

Thus, defendant is entitled to summary judgment for this additional reason. It is hereby ordered that plaintiffs’ complaint be hereby dismissed with prejudice.

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