| Wright v Rodriguez |
| 2008 NY Slip Op 01945 [49 AD3d 532] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Raquel Wright et al., Appellants, v William Rodriguez etal., Respondents. |
—[*1] Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Julie M. Sherwood of counsel), forrespondent William Rodriguez.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Westchester County (Murphy, J.), entered November 17, 2006, whichgranted the motion of the defendant William Rodriguez for summary judgment dismissing thecomplaint insofar as asserted against him on the ground that neither plaintiff sustained a seriousinjury within the meaning of Insurance Law § 5102 (d) and, in effect, upon searching therecord, awarded summary judgment dismissing the complaint insofar as asserted against thedefendants Luis Ospina and White Plains Bus Co., Inc.
Ordered that the order is affirmed, with costs.
The defendant William Rodriguez made a prima facie showing that neither plaintiff sustaineda serious 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. As to the plaintiff Raquel Wright, neither she norher examining physician adequately explained the lengthy gap in her treatment between October14, 2004, and her most recent examination on February 23, 2006 (see Pommells v Perez, 4 NY3d566, 574 [2005]; Sibrizzi v Davis,7 AD3d 691 [2004]; cf. Black v Robinson, 305 AD2d 438, 440 [2003]).
As to the plaintiff Hasan Precise, the affirmation of his treating physician submitted in [*2]opposition to the motion was not based on a recent examination,and thus the physician's projections of permanent limitations had no probative value (see Amato v Fast Repair Inc., 42 AD3d477 [2007]; Ali v Mirshah, 41AD3d 748 [2007]; Elgendy v Nieradko, 307 AD2d 251 [2003]). Moreover, thephysician's opinion that Precise's injuries and limitations were caused by the subject accident wasspeculative in light of the fact that the physician failed to acknowledge in his affirmation thatPrecise was involved in a prior automobile accident in 2002 (see Moore v Sarwar, 29 AD3d 752 [2006]; Tudisco v James, 28 AD3d 536[2006]; Bennett v Genas, 27 AD3d601 [2006]; Allyn v Hanley, 2AD3d 470 [2003]).
The plaintiffs' remaining submissions were insufficient on their own to raise a triable issue offact. 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 AD3d 407[2006]; Yakubov v CG Trans Corp.,30 AD3d 509, 510 [2006]; seealso Furrs v Griffith, 43 AD3d 389, 390 [2007]). Spolzino, J.P., Santucci, Dillon andBalkin, JJ., concur.