| Siegel v Sumaliyev |
| 2007 NY Slip Op 09762 [46 AD3d 666] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Regine Siegel, Appellant, v Ilyas Sumaliyev et al.,Defendants, and Kenny Basnight et al., Respondents. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Candace M. Bartone of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Harkavy, J.), dated June 7, 2006, which granted the motion ofthe defendants Kenny Basnight and MV Transportation, Inc., for summary judgment dismissingthe complaint insofar as asserted against them on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The respondents established their prima facie entitlement to judgment as a matter of law bydemonstrating that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis RentA Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Kearse v New York City Tr. Auth., 16AD3d 45, 49-50 [2005]). This burden was established by the submission of the report of therespondents' examining orthopedic surgeon, Dr. Lawrence Miller, who found, inter alia, that theplaintiff had a normal range of motion of her cervical and lumbar spine and that she had nodisability causally related to the subject accident (see Kearse v New York City Tr. Auth.,16 AD3d at 49-50). In opposition, the plaintiff failed to raise a triable issue of fact.[*2]
The magnetic resonance imaging reports of the plaintiff'scervical spine which showed herniated and bulging discs did not, alone, raise a triable issue offact as to whether she sustained a serious injury (see Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]; Cerisier v Thibiu, 29 AD3d 507,508 [2006]; Kearse v New York City Tr. Auth., 16 AD3d at 49). The mere existence of abulging or herniated 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 Yakubov v CG Trans Corp., 30 AD3d at 510; Kearse v New York City Tr.Auth., 16 AD3d at 49). Further, the plaintiff's treating orthopedist, Dr. Fred Montas, failed toaddress the findings in the report of the respondents' radiologist, including the findings ofdegenerative disease (see Passaretti vPing Kwok Yung, 39 AD3d 517 [2007]; Khan v Finchler, 33 AD3d 966, 967 [2006]; Giraldo v Mandanici, 24 AD3d419, 420 [2005]). As a result, his opinion that the plaintiff's injuries were causally related tothe subject accident was speculative (see Passaretti v Ping Kwok Yung, 39 AD3d at 517;Tudisco v James, 28 AD3d536, 537 [2006]; Giraldo v Mandanici, 24 AD3d at 420). Moreover, neither hisaffirmation nor the plaintiff's affidavit adequately explained the gap in treatment evident in therecord (see Waring v Guirguis, 39AD3d 741, 742 [2007]; Li v WooSung Yun, 27 AD3d 624, 625 [2006]; Neugebauer v Gill, 19 AD3d 567, 568 [2005]). Schmidt, J.P.,Spolzino, Skelos, Lifson and McCarthy, JJ., concur.