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RAFAEL E. LEMOS, Respondent, v. GIACOMO MANAGEMENT, INC., et al., Appellants.

Defendant corporation established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It submitted persuasive evidence of pre-existing degenerative bone disease in plaintiffs left knee that predated the accident, by way of a radiologist's affirmed report detailing the findings in plaintiff's MRI film, as well as plaintiffs physician's findings of degenerative disease. In op-position, plaintiff failed to meet his burden to adduce evidence rebutting the asserted lack of causation ( see Ortiz v Ash Leasing, Inc., 63 AD3d 556; Valentin v Pomilla, 59 AD3d 184, 186).

In light of the foregoing, defendant's argument regarding plaintiffs gap in treatment need not be considered.

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LEMOS v. GIACOMO MANAGEMENT, INC
(Mar 24, 2011)