Askins v. Upstaging Inc.

Askins v Upstaging Inc. 2026 NY Slip Op 05715 October 6, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Christine Askins, Plaintiff-Respondent, v Upstaging Inc. et al., Defendants-Appellants, Fumba Dukuly et al., Defendants. (And a Third-Party Action.) Decided and Entered: October 06, 2026 Index No. 805760/21|Appeal No. 7161|Case No. 2025-04745| Before: Moulton, J.P., Gesmer, Shulman, Hagler, Parker-Raso, JJ. Morris Duffy Alonso Faley & Pitcoff, New York (Charles M. Kerr of counsel), for appellants. The Altman Law Firm PLLC, Woodmere (Michael T. Altman of counsel), for respondent. [*1] Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about July 1, 2025, which, to the extent appealed from, denied defendants Upstaging Inc. and Gregg D. Falade's motion for summary judgment dismissing plaintiff's claims of serious injury under the Insurance Law § 5102(d) category of permanent consequential limitation of use and significant limitation of use, and the 90/180-day category, unanimously reversed, on the law, without costs, the motion granted, and the claims dismissed as against defendants Upstaging Inc. and Gregg D. Falade and, upon a search of the record, as against defendants Fumba Dukuly and Best Deal Car Service 2, Inc. The Clerk is directed to enter judgment accordingly. This action stems from a motor vehicle accident on April 24, 2020. Even though defendants' experts noted range of motion limitations as well as some abnormal conditions on the MRI of plaintiff's lumbar spine, defendants were entitled to summary judgment dismissing the complaint because they established prima facie that plaintiff's claimed injuries were not causally related to the accident (see Cooke v Jean-Baptiste, 247 AD3d 447, 448 [1st Dept 2026]; Kemegue v Rosario-Ramirez, 250 AD3d 565, 566 [1st Dept 2026]; see also Rodriguez v Santos, 235 AD3d 564, 564 [1st Dept 2025]). Defendants' experts' reports attributed plaintiff's claimed injuries to chronic, preexisting degenerative conditions that were not causally related to the accident. This was sufficient to respond to plaintiff's claim that the accident may have activated, aggravated, or exacerbated an underlying preexisting, chronic, or degenerative condition (see e.g. Rodriguez v Morel, 201 AD3d 606, 606-607 [1st Dept 2022]). In opposition, plaintiff failed to raise an issue of fact. Although her physician opined that plaintiff's claimed injuries and symptoms were caused by the accident, he did not specifically address any of the degenerative conditions identified by defendants' experts, including degenerative disc disease, desiccation, and osteophytes, or rule them out as a cause of plaintiff's claimed injuries and symptoms (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]; Franchini v Palmieri, 1 NY3d 536 [2003]; Cooke, 247 AD3d at 448; Dixon v Kone, 170 AD3d 541, 541-542 [1st Dept 2019]). The lack of causation defeats plaintiff's 90/180-day claim as well (see e.g. Harvey v New York Foundling Hosp., 248 AD3d 689, 689 [1st Dept 2026]; Cooke, 247 AD3d at 449). Because plaintiff cannot meet the serious injury threshold, upon a search of the record, the complaint is dismissed as against defendants Fumba Dukuly and Best Deal Car Service 2, Inc., even though they did not appeal (see McKenzie-Moses v Lelcaj, 238 AD3d 415, 416 [1st Dept 2025]; Natera v Veloz Livery Rentals Inc., 206 AD3d 428, 429 [1st Dept 2022]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 6, 2026