| Rashid v Estevez |
| 2008 NY Slip Op 00475 [47 AD3d 786] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Nasir Rashid, Respondent, v Pedro Estevez,Appellant. |
—[*1] Loscalzo & Loscalzo, P.C., New York, N.Y. (Michael S. Kafer of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated April 16, 2007, which denied hismotion 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 defendant's motion isgranted.
The defendant made a prima facie showing that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. The affirmationof the plaintiff's treating physician, along with his reports, failed to raise a triable issue of fact.The physician's initial conclusion that the plaintiff suffered from lumbar and cervicalradiculopathy was contradicted by his own testing results which revealed that the plaintiff did notsuffer from those injuries.
The affidavit of the plaintiff's treating chiropractor, along with his reports, were alsoinsufficient to raise a triable issue of fact. The chiropractor concluded that the plaintiff's lumbarand cervical injuries and limitations were caused by the subject accident and were permanent.However, he failed to address the fact that the plaintiff had been injured previously in a footballgame, nor did [*2]he address the finding of the defendant'sexamining radiologist that the plaintiff suffered from pre-existing degenerative disc disease in thelumbar region of the spine. Thus, these omissions rendered speculative his conclusions that theinjuries and limitations he noted in the plaintiff's cervical and lumbar regions of his spine werethe result of the subject accident (seePhillips v Zilinsky, 39 AD3d 728 [2007]; D'Alba v Yong-Ae Choi, 33 AD3d 650 [2006]; Moore v Sarwar, 29 AD3d 752[2006]; Giraldo v Mandanici, 24AD3d 419 [2005]).
The mere existence of a herniated or bulging disc is not evidence of a serious injury in theabsence of objective evidence of the extent of the alleged physical limitations resulting from thedisc injury and its duration (see Mejia vDeRose, 35 AD3d 407 [2006]; Yakubov v CG Trans 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]).Thus, the reports of the plaintiff's treating radiologist did not raise a triable issue of fact. Theself-serving affidavit of the plaintiff also was insufficient to establish a triable issue of fact as tothe existence of a serious injury (see Fisher v Williams, 289 AD2d 288 [2001]). Rivera,J.P., Florio, Carni and Balkin, JJ., concur.