Justice Arlene Bluth
Plaintiffs moved for summary judgment on the issue of liability and dismissal of Feigelson’s first affirmative defense. Feigelson cross-moved for summary judgment dismissing the complaint for Garcia’s failure to satisfy the serious injury threshold. Garcia was allegedly stopped at a red light and was rear-ended by Feigelson, claiming he sustained personal injuries resulting from the collision. The court noted Feigelson failed to offer a non-negligent reason for rear-ending Garcia, thus Garcia was granted summary judgment as to liability against Feigelson. Also, as liability was determined, the first affirmative defense for contributory negligence was dismissed. Feigelson claimed Garcia’s injuries were not caused by the subject accident, but were preexisting degenerative conditions and/or from Garcia’s injuries caused by a 2006 accident, three years before this incident. The court found Garcia’s proof was in admissible form, noting absent admissible contemporaneous evidence of alleged limitations, he could not raise an inference that his injuries were caused by the accident. It stated an orthopedist’s report was insufficient, granting Feigelson’s motion to dismiss Garcia’s claims. Yet, vehicle owner Diaz’s property damage claim remained.
