Majority
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered April 27, 2015. The order granted the motion of defendants Gladys Fullington and Bryant L. Fullington for summary judgment dismissing the complaint against them.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this action by plaintiff to recover damages for injuries allegedly sustained in a motor vehicle accident, plaintiff appeals from an order granting the motion of Gladys Fullington and Bryant L. Fullington (defendants) for summary judgment dismissing the complaint against them. We note at the outset that, in opposition to the motion and on this appeal, plaintiff has abandoned all of her claims of serious injury except those alleging a permanent consequential limitation of use or a significant limitation of use (see generally Hartley v White, 63 AD3d 1689 , 1689 [2009]; Harris v Carella, 42 AD3d 915 , 915-916 [2007]).
Supreme Court properly granted defendants’ motion. By submitting plaintiff’s deposition testimony and the affirmation of an orthopedic surgeon who examined plaintiff, defendants established as a matter of law that plaintiff did not sustain a serious injury as a result of the subject accident. Those submissions established that plaintiff’s injuries were preexisting conditions attributable to either degenerative processes or a prior unrelated motor vehicle accident (see Hartman-Jweid v Overhaugh, 70 AD3d 1399 , 1400 [2010]; see generally Carrasco v Mendez, 4 NY3d 566 , 578-580 [2005]). In opposition to the motion, plaintiff failed to raise a triable issue of fact (see Hartley, 63 AD3d at 1690 ; Zeigler v Ramadhan, 5 AD3d 1080 , 1082 [2004]; Sewell v Kaplan, 298 AD2d 840 , 840-841 [2001]). Indeed, plaintiff’s submission of MRI reports and the notes of her treating chiropractor confirm that the subject accident did not cause any new injury or exacerbate any preexisting injury,
Present — Whalen, P.J., Centra, NeMoyer, Troutman and Scud-der, JJ.
Cases cited
- Hartley v. White 63 AD3d 1689 at 1689 p. 1290
- Harris v. Carella 42 AD3d 915 at 915-916 p. 1290
- Hartman-Jweid v. Overbaugh 70 AD3d 1399 at 1400 p. 1290
- Pommells v. Perez 4 NY3d 566 at 578-580 p. 1290
- Zeigler v. Ramadhan 5 AD3d 1080 at 1082 p. 1290
- Sewell v. Kaplan 298 AD2d 840 at 840-841 p. 1290
- Edwards v. Devine 111 AD3d 1370 at 1371-1372 p. 1291
- Kwitek v. Seier 105 AD3d 1419 at 1421 p. 1291