| Shvartsman v Vildman |
| 2008 NY Slip Op 00252 [47 AD3d 700] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Yaroslav Shvartsman, Respondent, v Vyacheslav Vildmanet al., Appellants. |
—[*1]
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Kings County (Schack, J.), dated January 12, 2007, as deniedtheir motion for summary judgment dismissing the complaint on the ground that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion for summary judgment dismissing the complaint is granted.
The defendants Vyacheslav Vildman and Mikhail Vildman made a prima facie showing oftheir entitlement to judgment as a matter of law by establishing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact.
The only medical submissions that were properly before the Supreme Court were theaffirmed medical report of Dr. Zina Turovsky and the affirmation (with annexed reports) of Dr.Robert D. Solomon. All of the other medical submissions relied upon by the plaintiff werewithout any probative value since they were unsworn (see Rodriguez v Cesar, 40 AD3d 731, 732-733 [2007]). Theaffirmed medical report of Dr. Turovsky, the plaintiff's examining physician, failed to raise atriable issue of fact. Dr. Turovsky concluded that the plaintiff sustained permanent injuries andlimitations to his cervical spine and left knee as a result of the subject accident. While there wasevidence in [*2]that report of range-of-motion limitations in theplaintiff's cervical spine that was based upon a recent examination, neither the plaintiff nor Dr.Turovsky proffered any competent medical evidence that showed range-of-motion limitations inthe plaintiff's cervical spine or left knee that were contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d525 [2007]; Rodriguez v Cesar,40 AD3d 731, 733 [2007]; Borgellav D & L Taxi Corp., 38 AD3d 701, 702 [2007]). The submission of the plaintiff'smagnetic resonance imaging reports concerning his cervical spine and left knee, as authored byDr. Solomon, merely showed that, as of February 2003, the plaintiff had herniated discs in hiscervical spine and a partial tear of the medial meniscus of the left knee. The mere existence of aherniated or bulging disc, and even a tear in a tendon, is not evidence of a serious injury in theabsence of objective evidence of the extent of the alleged physical limitations resulting from theinjury and its duration (see Patterson vNY Alarm Response Corp., 45 AD3d 656 [2007]; Tobias v Chupenko, 41 AD3d 583, 584 [2007]; Mejia v DeRose, 35 AD3d 407,407-408 [2006]).
The plaintiff's self-serving affidavit was insufficient to show that he sustained a seriousinjury, since there was no objective medical evidence in support of it (see Tobias vChupenko, 41 AD3d at 584). None of the admissible medical submissions by the plaintiffwere sufficient to establish that he sustained a medically-determined injury of a nonpermanentnature which prevented him from performing his usual and customary activities for 90 of the 180days following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]).Crane, J.P., Fisher, Ritter, Covello and Dickerson, JJ., concur.