| Sharma v Diaz |
| 2008 NY Slip Op 01130 [48 AD3d 442] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Chandan Sharma, Respondent, v Raymond R. Diaz,Appellant. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Michael F.Villeck and Melissa C. Ingrassia of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated May 4, 2007, which denied his 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 defendant's motion forsummary judgment dismissing the complaint is granted.
Contrary to the Supreme Court's determination, the defendant met his prima facie burden ofshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Meyers v Bobower Yeshiva BneiZion, 20 AD3d 456 [2005]; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact. The report of Dr. ShahidMian was without any probative value, since it was unaffirmed (see Patterson v NY Alarm Response Corp.,45 AD3d 656 [2007]; Rodriguez v Cesar, 40 AD3d 731 [2007]; Phillips v Zilinsky, 39 AD3d 728[2007]). Moreover, while Dr. Mian did set forth range of motion findings based on his January26, 2004, examination of the plaintiff, he failed to compare those findings to the normal rangesof motion (see Page v Belmonte, 45AD3d 825 [2007]; Malave vBasikov, 45 AD3d 539 [2007]; Fleury v Benitez, 44 AD3d 996 [2007]; [*2]Nociforo v Penna, 42 AD3d 514 [2007]).
Despite any range of motion findings that may have been made prior to January 29, 2004, thefindings made on that date are the most recent ones set forth by the plaintiff in opposition to themotion. Dr. M.A. Farescal, one of the plaintiff's treating physicians, examined the plaintiff onJanuary 29, 2004 and concluded on that date, which was within three months of the subjectaccident, that the plaintiff had full range of motion in the lumbar and cervical regions of hisspine. Thus, the plaintiff's own treating physician concluded that within three months of thesubject accident the plaintiff had full range of motion in those areas. The plaintiff proffered noother range of motion findings made after January 29, 2004 that differ. In fact, there was norecent examination of the plaintiff in which range of motion testing was shown to be performed.This was fatal for the plaintiff since he asserted that his medical submissions raised a triable issueof fact that he sustained permanent disabilities as a result of the subject accident. Without arecent examination, no such permanency could be established (see Amato v Fast Repair Inc., 42 AD3d477, 477-478 [2007]; Ali vMirshah, 41 AD3d 748, 749 [2007]; Elgendy v Nieradko, 307 AD2d 251[2003]; Chinnici v Brown, 295 AD2d 465, 466 [2002]). While Dr. Farescal performed anexamination on August 16, 2006 of the plaintiff, no range of motion findings concerning theplaintiff's ability to move the cervical and/or lumbar regions of his spine on that date were setforth. The mere existence of a herniated or bulging disc, and even radiculopathy, is not evidenceof a serious injury in the absence of objective evidence of the extent of the alleged physicallimitations resulting from the disc injury and its duration (see Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007];Mejia v DeRose, 35 AD3d407-408 [2006]). Objective evidence of the extent of the alleged physical limitationsresulting from the disc injuries and their duration was not established by the plaintiff via hissubmissions. Neither the self-serving affidavit of the plaintiff, nor his deposition testimony,established the existence of a triable issue of fact (see Brobeck v Jolloh, 32 AD3d 526, 527 [2006]; Davis v NewYork City Tr. Auth., 294 AD2d 531, 531-532 [2002]; Fisher v Williams, 289 AD2d288, 289 [2001]).
Since the plaintiff did not allege in his complaint or bill of particulars that he sustained asignificant disfigurement as a result of the subject accident and did not move for leave to amendthe bill of particulars, the evidence pertaining to any scar on his forehead was not considered(see Ifrach v Neiman, 306 AD2d 380 [2003]; Seymour v Roe, 301 AD2d 991,992 n 2 [2003]). Rivera, J.P., Florio, Carni and Balkin, JJ., concur.