| Deutsch v Tenempaguay |
| 2008 NY Slip Op 01492 [48 AD3d 614] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Shmuel Deutsch, Respondent, v Angel Tenempaguay,Appellant. |
—[*1] Law Offices of Marcel Weisman, LLC, New York, N.Y. (Ezra Holczer of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Schneier, J.), dated May 25, 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.
The defendant made a prima facie showing that the plaintiff did not sustain a serious injuryby virtue of sustaining either a permanent consequential limitation of use of a body organ ormember or a significant limitation of use of a body function or system, within the meaning ofInsurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition to the defendant'sshowing, the plaintiff failed to raise a triable issue of fact. The affirmation and report of theplaintiff's treating physician were insufficient to raise a triable issue of fact as to whether theplaintiff sustained an injury within those catergories since the physician's conclusions were notbased on a recent examination of the plaintiff (see Amato v Fast Repair Inc., 42 AD3d 477 [2007]; Ali v Mirshah, 41 AD3d 748[2007]; Mejia v DeRose, 35 AD3d407 [2006]; Elgendy v Nieradko, 307 AD2d 251 [2003]). Furthermore, neither theplaintiff nor his experts proffered competent medical [*2]evidence that was even roughly contemporaneous with the subjectaccident showing range-of-motion limitations in his spine (see D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]; Morales v Daves, 43 AD3d 1118[2007]; Rodriguez v Cesar, 40AD3d 731 [2007]).
The submission of the plaintiff's magnetic resonance imaging reports concerning the cervicaland lumbar regions of his spine were insufficient to raise a triable issue of fact. The mereexistence of a herniated or bulging disc is not evidence of a serious injury where, as here,objective evidence of the extent of the alleged physical limitations resulting from the disc injuryand its duration is absent (see Siegel vSumaliyev, 46 AD3d 666 [2007]; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007]; Mejia v DeRose, 35 AD3d 407[2006]; Yakubov v CG Trans Corp.,30 AD3d 509 [2006]; Cerisierv Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694 [2006]; Kearse v New York City Tr. Auth., 16AD3d 45 [2005]; Diaz v Turner, 306 AD2d 241 [2003]). Moreover, the self-servingaffidavit of the plaintiff was insufficient to raise a triable issue of fact as to whether he sustaineda serious injury under any statutory definition of the term (see Elder v Stokes, 35 AD3d 799 [2006]; Brobeck v Jolloh, 32 AD3d 526[2006]; Fisher v Williams, 289 AD2d 288 [2001]). Mastro, J.P., Fisher, Florio,Angiolillo and Dickerson, JJ., concur.