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JOHN GINTY, Appellant, v. BRIAN MacNAMARA, ET AL., respondents.

DECISION ORDER

ORDERED that the order is affirmed, with costs.

The defendants submitted the sworn medical reports of their examining medical experts which established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; McCauley v. Ross, 298 A.D.2d 506 [2d Dept; Oct. 21, 2002]). In opposition to the motion, the plaintiff submitted the opinion of his examining physician that the plaintiff was suffering from restriction of motion in his cervical spine. However, the plaintiff's expert failed to indicate his awareness that the plaintiff was suffering from chronic degenerative disc disease, and therefore, his finding that the plaintiff's current restriction of motion was causally related to the subject accident was mere speculation (see Narducci v. McRae, 298 A.D.2d 443; Kallicharan v. Sooknanan, 282 A.D.2d 573, 574; Waaland v. Weiss, 228 A.D.2d 435). Furthermore, the plaintiff failed to explain a significant gap in treatment (see Crespo v. Kramer, 295 A.D.2d 467; Mejia v. Thom, 280 A.D.2d 528; Borino v. Little, 273 A.D.2d 262).

The plaintiff's submissions did not raise a triable issue of fact (see Toure v. Avis Rent A Car Sys., supra; Keena v. Trappen, 294 A.D.2d 405). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

ALTMAN, J.P., S. MILLER, McGINITY, SCHMIDT and RIVERA, JJ., concur.

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GINTY v. MacNAMARA
(Dec 30, 2002)