| Hargrove v New York City Tr. Auth. |
| 2008 NY Slip Op 02553 [49 AD3d 692] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Otha Charles Hargrove, Appellant, v New York CityTransit Authority et al., Respondents. |
—[*1] Wallace D. Gossett, New York, N.Y. (Steve S. Efron of counsel), for respondents New YorkCity Transit Authority and Richard K. Yanity. Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,Uniondale, N.Y. [Gregory A. Cascino] of counsel), for respondents Callie M. Sams and LanceSams.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Lane, J.), entered January 25, 2007, which granted themotion of the defendants New York City Transit Authority and Richard K. Yanity and theseparate motion of the defendants Callie M. Sams and Lance Sams for summary judgmentdismissing the complaint insofar as asserted against them on the ground that he did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with one bill of costs payable to the defendants.
The Supreme Court properly determined that the defendants satisfied their respective primafacie burdens on their separate motions for summary judgment by showing that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955, 956-957 [1992]).[*2]
In opposition, the plaintiff failed to raise a triable issue offact. The plaintiff relied on various unaffirmed and unsworn medical reports in opposing thedefendants' motions, all of which were without any probative value (see Patterson v NY Alarm ResponseCorp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747, 748 [2007]; Nociforo v Penna, 42 AD3d 514,515 [2007]; see also Grasso v Angerami, 79 NY2d 813 [1991]; Pagano vKingsbury, 182 AD2d 268 [1992]). The affirmation of Dr. Arden Kaisman, one of theplaintiff's physicians, also was insufficient to raise a triable issue of fact since Dr. Kaisman reliedon an unsworn report of another physician in reaching his conclusions (see Malave v Basikov, 45 AD3d539, 540 [2007]; Govori v AgateCorp., 44 AD3d 821 [2007]; Verette v Zia, 44 AD3d at 748; Furrs v Griffith, 43 AD3d 389,390 [2007]; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [1995]).
The plaintiff's magnetic resonance imaging reports merely showed that as of August 2004 theplaintiff had, among other things, a bulging disc at L5-S1. The mere existence of a herniated orbulging disc is not evidence of a serious injury in the absence of objective evidence of the extentof the alleged physical limitations resulting from the injury and its duration (see Shvartsman v Vildman, 47 AD3d700 [2008]; Patterson v NY AlarmResponse Corp., 45 AD3d 656 [2007]; Tobias v Chupenko, 41 AD3d 583, 584 [2007]; Mejia v DeRose, 35 AD3d 407,407-408 [2006]). Further, the plaintiff's self-serving affidavit was insufficient to raise a triableissue of fact, as there was no objective medical evidence in support of it (see Shvartsman v Vildman, 47 AD3d700 [2008]; Tobias v Chupenko, 41 AD3d at 584).
The plaintiff's remaining admissible medical submissions were insufficient to establish thathe sustained a medically-determined injury of a nonpermanent nature which prevented him fromperforming his usual and customary activities for 90 of the 180 days following the subjectaccident (see Roman v Fast Lane CarServ., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569, 570[2000]). Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.