| D'Onofrio v Floton, Inc. |
| 2007 NY Slip Op 08404 [45 AD3d 525] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Carmine D'Onofrio, Respondent, v Floton, Inc., et al.,Appellants. |
—[*1] Michael D. Hassin, Rockville Centre, N.Y. (Randall A. Sorscher of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Bunyan, J.), dated March 14, 2007, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
Contrary to the Supreme Court's determination, the defendants met their prima facie burdenof establishing that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, theplaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's treating neurologistshowed range of motion limitations in the plaintiff's spine based on a recent examination.However, neither the plaintiff nor his treating neurologist proffered competent medical evidencethat showed range of motion limitations in the plaintiff's spine that were contemporaneous withthe subject accident (see Morales vDaves, 43 AD3d 1118 [2007]; Borgella v D & L Taxi Corp., 38 AD3d 701, 702 [2007]; Iusmen v Konopka, 38 AD3d 608,609 [2007]; Earl v Chapple, 37AD3d 520, 521 [2007]).[*2]
The only other evidence submitted by the plaintiff inopposition to the defendants' motion was the affirmed magnetic resonance imaging report of theplaintiff's lumbar spine which showed bulging discs at L3-4 and L4-5. The mere existence of aherniated or bulging disc is not evidence of a serious injury in the absence of objective evidenceof the extent of the alleged physical limitations resulting from the disc injury and its duration (see Morales v Daves, 43 AD3d1118 [2007]; Mejia v DeRose,35 AD3d 407, 407-408 [2006]; Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]; Cerisier v Thibiu, 29 AD3d 507,508 [2006]). Rivera, J.P., Krausman, Florio, Carni and Balkin, JJ., concur.