Lemos v. Giacomo Management Inc.

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 preexisting 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 opposition, plaintiff failed to meet his burden to adduce evidence rebutting the asserted lack of causation (see Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Valentin v Pomilla, 59 AD3d 184, 186 [2009]). In light of the foregoing, defendant’s argument regarding plaintiffs gap in treatment need not be considered. Concur— Gonzalez, EJ., Catterson, Richter, Abdus-Salaam and Román, JJ.