| Pazmino v Universal Distribs., LLC |
| 2007 NY Slip Op 08429 [45 AD3d 554] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Gerardo Pazmino, Respondent, v Universal Distributors,LLC, et al., Appellants. |
—[*1] Eric H. Green, New York, N.Y. (Marc Gertler and Hiram Anthony Raldiris of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Kurtz, J.), dated January 12, 2007, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious 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.
The defendants met their prima facie burden by establishing that the plaintiff did not sustaina serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident on August 24, 2002 (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955 [1992]).
In opposition, the plaintiff failed to raise a triable issue of fact. In the most recent medicalreport of Dr. Hausknecht, the plaintiff's treating neurologist, dated June 27, 2006, he noted thatthe plaintiff was involved in "several" accidents since he last examined the plaintiff a year earlier.Rather than address those accidents, Dr. Hausknecht simply concluded that the significant [*2]range of motion limitations in the plaintiff's cervical and lumbarspine, as well as the injuries noted in the plaintiff's magnetic resonance imaging reports, were theresult of the subject accident. These conclusions were clearly rendered speculative in light of thefact that he failed to address what those prior accidents involved (see Moore v Sarwar, 29 AD3d 752[2006]; Tudisco v James, 28 AD3d536 [2006]; Bennett v Genas,27 AD3d 601 [2006]; Allyn vHanley, 2 AD3d 470 [2003]).
The magnetic resonance imaging reports of the plaintiff's cervical and lumbar spine, datedOctober 2002, merely showed evidence that the plaintiff had disc herniations and bulges in thoseregions of his spine at that time. This Court has held that the mere existence of a herniated orbulging disc, and even radiculopathy, is not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the disc injuryand its duration (see Mejia v DeRose,35 AD3d 407 [2006]; Yakubov v CG Tran s Corp., 30 AD3d 509 [2006]; Cerisier v Thibiu, 29 AD3d 507[2006]; Bravo v Rehman, 28 AD3d694 [2006]; Kearse v New YorkCity Tr. Auth., 16 AD3d 45 [2005]; Diaz v Turner, 306 AD2d 241 [2003]; see also Furrs v Griffith, 43 AD3d389 [2007]). Schmidt, J.P., Spolzino, Skelos, Lifson and McCarthy, JJ., concur.