BEATTY v. MIAH

Defendants established their entitlement to judgment as a matter of law. Defendants submitted, inter alia, the affirmed reports of a neurologist, a radiologist and an orthopedist, who, based upon examinations of plaintiff and his medical records, all concluded that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiffs MRI scan, which evidenced a bulging disc, was taken nearly four years after the accident, and was too remote to be probative of his accident-related claim, especially since neither the radiologist nor plaintiffs doctor who treated him in 2008 offered any nonspeculative opinion as to a causal connection between the bulging disc and the accident ( see Pou v E S Wholesale Meats, Inc., 68 AD3d 446; Whisenant v Farazi, 67 AD3d 535).

Plaintiffs claim based on an alleged inability to engage in substantially all of his daily activities for 90 of the first 180 days post-accident was refuted by his own testimony. Plaintiff testified that he missed only one day of work and was only confined to bed after work ( see Pou at 447).