| Piperis v Wan |
| 2008 NY Slip Op 02811 [49 AD3d 840] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Manolis Piperis, Respondent, v Keon Jeramyes Wan et al.,Appellants. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for appellants Albert Berger and Always Available II. Jeffrey Kim, P.C., Bayside, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants Keon Jeramyes Wanand Ping Zhi Wan appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Schmidt, J.), dated June 6, 2007, as denied that branch of their motionwhich was for summary judgment dismissing the complaint insofar as asserted against them onthe ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and the defendants Albert Berger and Always Available II separately appeal, aslimited by their brief, from so much of the same order as denied their separate motion forsummary judgment dismissing the complaint insofar as asserted against them on the ground thatthe plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,that branch of the motion of the defendants Keon Jeramyes Wan and Ping Zhi Wan which wasfor summary judgment dismissing the complaint insofar as asserted against them is granted, andthe separate motion of the defendants Albert Berger and Always Available II for summaryjudgment dismissing the complaint insofar as asserted against them is granted.
The Supreme Court concluded that the defendants satisfied their prima facie burdens 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]). The plaintiff takes noissue with that determination on appeal.[*2]
Contrary to the Supreme Court's determination, however,the plaintiff failed to raise a triable issue of fact in opposition. The plaintiff's hospital recordswere without any probative value since they were uncertified (see Mejia v DeRose, 35 AD3d 407, 408 [2006]). The plaintiff didnot see Sheila Horn, his treating osteopath, until July 1, 2005, two weeks after the accident. Herreport of the examination at that time, while reflecting a significant limitation in certain of theplaintiff's ranges of motion, failed to set forth the objective tests that were used to reach thatresult (see Murray v Hartford, 23AD3d 629 [2005]; Nelson vAmicizia, 21 AD3d 1015, 1016 [2005]; Maldonado v Ying Li, 13 AD3d 344 [2004]). Horn's report of herexamination of the plaintiff on September 9, 2005 reflects however, that the plaintiff's ranges ofmotion were virtually normal. In light of this, the unexplained determination by the plaintiff'sexamining physician David Delman that the subject accident caused the injuries and limitationshe noted in the plaintiff's cervical spine, lumbar spine, and left knee on February 28, 2007 wasspeculative and conclusory, and therefore insufficient to raise a triable issue of fact (seeMickelson v Padang, 237 AD2d 495, 496 [1997]).
The submission of the plaintiff's magnetic resonance imaging reports concerning his cervicalspine, lumbar spine, and left knee, as authored by Dr. Robert Diamond, merely showed that, as ofJuly and August 2005, the plaintiff had disc bulges in his cervical and lumbar spine and a tear ofthe interior horn of the medial meniscus of the left knee. 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 vVildman, 47 AD3d 700 [2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Tobias v Chupenko, 41 AD3d 583,584 [2007]; Mejia v DeRose, 35 AD3d at 407-408). The plaintiff's affidavit was alsoinsufficient to raise a triable issue of fact as to whether he sustained a serious injury (see Shvartsman v Vildman, 47 AD3d700 [2008]; Tobias v Chupenko, 41 AD3d at 584).
The plaintiff's admissible medical submissions were insufficient to raise a triable issue of factas to whether he sustained a medically-determined injury of a nonpermanent nature whichprevented him from performing his usual and customary activities for 90 of the 180 daysfollowing the subject accident (seeRoman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536 [2007]; Sainte-Aime vHo, 274 AD2d 569 [2000]).
Accordingly, the Supreme Court should have granted the motion of the defendant AlbertBerger and Always Available II and that branch of the separate motion of the defendants KeonJeramyes Wan and Ping Zhi wan which was for summary judgment dismissing the complaintinsofar as asserted against each of them. Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ.,concur.