| Rodriguez v Huerfano |
| 2007 NY Slip Op 10134 [46 AD3d 794] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Jose Carlos Rodriguez, Appellant, v Virginia Huerfano etal., Respondents. |
—[*1] Brian J. McGovern, LLC, New York, N.Y. (Timothy J. Valdez of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated August 24, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
While riding his bicycle near the intersection of Hilltop Drive and Second Avenue in theTown of Islip, on the evening of March 19, 2003, the plaintiff was struck and knocked to theground by a motor vehicle owned by the defendant David Garcia and operated by the defendantVirginia Huerfano. Following the plaintiff's commencement of this action to recover damages forthe personal injuries sustained, the defendants successfully moved for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d). We affirm.
The defendants established that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) through the submission of the affirmed medicalreport of their expert orthopedist, who conducted a physical examination of the plaintiff, findinga normal [*2]range of motion in his cervical and lumbar regionsof the spine and the absence of any orthopedic disability (see Gaddy v Eyler, 79 NY2d955, 956-957 [1992]; Shamsoodeen vKibong, 41 AD3d 577 [2007]).
In opposition, the plaintiff failed to raise a triable issue of fact. The magnetic resonanceimaging (hereinafter MRI) report regarding the plaintiff's lumbar region of the spine, upon whichthe plaintiff's treating chiropractor relied in opposing the motion, was without probative value,since it was not affirmed by the plaintiff's physician (see Grasso v Angerami, 79 NY2d813, 814 [1991]), and was not actually relied upon by the defendants' expert (see Zarate v McDonald, 31 AD3d632, 633 [2006]; Ayzen v Melendez, 299 AD2d 381 [2002]). Even if the underlyingMRI report were admissible (seePommells v Perez, 4 NY3d 566, 577 n 5 [2005]), the report of the plaintiff's treatingchiropractor still failed to provide objective and recent evidence of the extent or degree andduration of the claimed limitation of the plaintiff's lumbar region of the spine (see Mejia v DeRose, 35 AD3d407, 408 [2006]; Young vRussell, 19 AD3d 688, 689 [2005]). Therefore, no serious injury was sufficientlyestablished with competent medical evidence to raise a triable issue of fact (see Iusmen v Konopka, 38 AD3d608, 609 [2007]; Felix v New YorkCity Tr. Auth., 32 AD3d 527, 528 [2006]).
The plaintiff's remaining contentions are without merit. Schmidt, J.P., Rivera, Santucci andBalkin, JJ., concur.