| Marrache v Akron Taxi Corp. |
| 2008 NY Slip Op 03599 [50 AD3d 973] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Haim Marrache et al., Respondents, v Akron Taxi Corp. etal., Appellants, et al., Defendants. |
—[*1] The Yankowitz Law Firm, P.C., Great Neck, N.Y. (Robert P. Baquet of counsel), forrespondents. John P. Humphreys, New York, N.Y. (Eric P. Tosca of counsel), for defendants.
In an action to recover damages for personal injuries, etc., the defendants Akron Taxi Corp.and Curtis Oppong Maison appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Schneier, J.), dated July 20, 2007, as denied their motion forsummary judgment dismissing the complaint insofar as asserted against them on the ground thatthe plaintiff Haim Marrache 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 costs payable bythe plaintiffs to the appellants, the appellants' motion for summary judgment dismissing thecomplaint insofar as asserted against them is granted, and, upon searching the record, summaryjudgment is awarded to the defendants Parties Events & More, David Thomas Stewart II, andEntertaining Ideas, Inc., dismissing the complaint insofar as asserted against them.
The defendants Akron Taxi Corp. and Curtis Oppong Maison (hereinafter the appellants) mettheir prima facie burden of showing that the plaintiff Haim Marrache (hereinafter the injuredplaintiff) 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., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).[*2]
In opposition, the injured plaintiff failed to raise a triableissue of fact. The vast majority of the submissions of the injured plaintiff were unsworn, and thuswithout any probative value (seePatterson 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 submissions of expert physicians Oksana Levitanskyand Joyce Goldenberg were insufficient to raise a triable issue of fact. Neither expert addressedthe findings of the appellants' examining radiologist, who concluded that the injured plaintiffsuffered from degenerative disc disease in the C2 through C7 levels of her cervical spine. Thisfailure rendered speculative Levitansky and Goldenberg's respective conclusions that the injuriesand limitations that they noted were caused by the subject accident (see Giraldo v Mandanici, 24 AD3d419 [2005]; Lorthe v Adeyeye, 306 AD2d 252 [2003]; Pajda v Pedone, 303AD2d 729 [2003]; Ginty v MacNamara, 300 AD2d 624 [2002]).
The magnetic resonance imaging report by Jeffrey Chess concerning the injured plaintiff'scervical spine merely showed that as of June 23, 2005 the injured plaintiff appeared to haveherniated discs at C2-3 and C3-4, as well as bulging discs at C3 through C7. The mere existenceof a herniated or bulging disc, and even radiculopathy, is not evidence of a serious injury in theabsence of objective evidence of the extent of the alleged physical limitations resulting from thedisc injury and its duration (see Sharmav Diaz, 48 AD3d 442 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]; Patterson v NY Alarm Response Corp.,45 AD3d 656 [2007]; Mejia vDeRose, 35 AD3d 407, 408 [2006]). Further, Chess did not offer any opinion as to howthe disc herniations and bulges were caused (see Collins v Stone, 8 AD3d 321, 322 [2004]). The self-servingaffidavit of the injured plaintiff was insufficient to raise a triable issue of fact (see Shvartsman v Vildman, 47 AD3d700 [2008]; Fisher v Williams, 289 AD2d 288 [2001]).
Accordingly, the Supreme Court should have granted the appellants' motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Moreover, this Court has the authority to search the record and award summary judgment toa nonappealing party with respect to an issue that was the subject of the motion before theSupreme Court (cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Colon v Vargas, 27 AD3d 512,514 [2006]). Upon searching the record, we thus award summary judgment to the defendantsParties Events & More, David Thomas Stewart II, and Entertaining Ideas, Inc., dismissing thecomplaint insofar as asserted against them (see CPLR 3212 [b]). Rivera, J.P., Lifson,Miller, Carni and Eng, JJ., concur.