| Casas v Montero |
| 2008 NY Slip Op 01694 [48 AD3d 728] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Martha Casas et al., Respondents, v Manuel M. Montero,Appellant. |
—[*1] Valdebenito & Ardito, LLP, Garden City, N.Y. (Venessa D. Melly of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Hart, J.), entered May 24, 2007, which denied his motionfor summary judgment dismissing the complaint on the ground that neither of the plaintiffssustained 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 forsummary judgment dismissing the complaint is granted.
The defendant met his prima facie burden of showing that neither of the plaintiffs sustained 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 v Eyler,79 NY2d 955, 956-957 [1992]; seealso Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]). In opposition, theplaintiffs failed to raise a triable issue of fact. The reports concerning the plaintiffs authored byDr. Sean V. Cotter, one of the plaintiffs' treating chiropractors, were without any probative valuein opposing the defendant's motion. Dr. Cotter attempted to affirm the contents of his reportsconcerning the plaintiffs pursuant to CPLR 2106, but since he is a chiropractor, he could notavail himself of that statute to affirm the contents of his reports (see CPLR 2106; Kunz v Gleeson, 9 AD3d 480[2004]; Santoro v Daniel, 276 AD2d 478 [2000]). The reports of Dr. Joanne D. Manfredi,one of the plaintiffs' treating physicians, as well as [*2]the reportof Dr. Osric S. King concerning the plaintiff Martha Casas, were also without probative value inopposing the defendant's motion since they were unaffirmed (see Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007];Verette v Zia, 44 AD3d 747[2007]; Nociforo v Penna, 42 AD3d514 [2007]; see also Grasso v Angerami, 79 NY2d 813 [1991]; Pagano vKingsbury, 182 AD2d 268 [1992]).
The reports of Dr. Roxana Todirascu and Dr. Alonso V. Correa, both treating physicians ofthe plaintiffs, were properly affirmed but did not raise a triable issue of fact. Dr. Todirascuexamined the plaintiffs on February 23, 2004. In her reports, while she noted "decreased" rangesof motion in Casas' cervical spine, lumbar spine, and right shoulder, and "decreased" ranges ofmotion in the plaintiff Hernan Carrasco's cervical spine, she failed to set forth the objective testsshe performed to arrive at those conclusions (see Murray v Hartford, 23 AD3d 629 [2005]; Nozine v Sav-On Car Rentals, 15AD3d 555 [2005]; Bailey vIchtchenko, 11 AD3d 419 [2004]; Kauderer v Penta, 261 AD2d 365 [1999]).Moreover, it is evident that Dr. Todirascu relied on the unsworn reports of others in arriving ather conclusions concerning Casas (seeMalave v Basikov, 45 AD3d 539 [2007]; Govori v Agate Corp., 44 AD3d 821 [2007]; Verette v Zia, 44 AD3d 747[2007]; Furrs v Griffith, 43 AD3d389 [2007]; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [1995]). Thereports of Dr. Correa are similarly flawed.
The affidavits of Dr. Frank Alamilla, one of the plaintiffs' treating chiropractors, wereinsufficient to raise a triable issue of fact since it is apparent that Dr. Alamilla relied on theunsworn reports of Dr. Cotter in coming to the conclusions contained in those affidavits (see Malave v Basikov, 45 AD3d539 [2007]; Govori v Agate Corp.,44 AD3d 821 [2007]; Verette vZia, 44 AD3d 747 [2007]; Furrs v Griffith, 43 AD3d 389 [2007]; Friedman v U-HaulTruck Rental, 216 AD2d at 267).
The only magnetic resonance imaging (hereinafter MRI) report that was properly relied uponby the plaintiffs in opposition to the defendant's motion was that of Casas' right shoulder. All ofthe other MRI reports and nerve conduction studies submitted by the plaintiffs were unaffirmed,and thus without any probative value in opposing the defendant's motion (see Patterson v NY Alarm Response Corp.,45 AD3d 656 [2007]; Verette vZia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]). The MRI report of Casas'right shoulder was properly relied upon by the plaintiffs because the defendant's examiningorthopedic surgeon set forth in detail the specific results of this report in his own report whichwas submitted in support of the defendant's motion (see Zarate v McDonald, 31 AD3d 632 [2006]; Ayzen vMelendez, 299 AD2d 381 [2002]). Nevertheless, the mere existence of a herniated orbulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the injury andits duration (see Shvartsman v Vildman,47 AD3d 700 [2008]; Pattersonv NY 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 self-serving affidavits of the plaintiffs clearly were insufficient to raise a triable issue offact on their own, as were the excerpts of the plaintiffs' testimony given at their respectivedepositions, since there was no objective medical evidence in support of those submissions (see Shvartsman v Vildman, 47 AD3d700 [2008]; Tobias v Chupenko, 41 AD3d at 584).
The plaintiffs' admissible medical submissions were insufficient to establish that eitherplaintiff sustained a medically-determined injury of a nonpermanent nature which preventedthem from performing their usual and customary activities for 90 of the 180 days following thesubject accident (see Roman v Fast LaneCar Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 [*3]AD2d 569 [2000]). Mastro, J.P., Fisher, Florio, Angiolillo andDickerson, JJ., concur.