| Rabolt v Park |
| 2008 NY Slip Op 03619 [50 AD3d 995] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Joelle Rabolt, Appellant, v Joohyun Park et al.,Defendants, and John W. Keating et al., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), datedSeptember 28, 2006, as granted the motion of the defendants John W. Keating and All CorporateTransport, Inc., for summary judgment dismissing the complaint insofar as asserted against themon the ground that she did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and denied, as academic, that branch of her cross motion which was forsummary judgment on the issue of liability against those defendants.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants John W. Keating and All Corporate Transport, Inc., met their initial primafacie burden of establishing that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis RentA Car Sys., 98 NY2d 345, 350-351 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]; see also Meyers v BobowerYeshiva Bnei Zion, 20 AD3d 456 [2005]). In opposition, the plaintiff failed to raise atriable issue of fact.
Initially, the chiropractic and physical therapy reports relied upon by the plaintiff were notcompetent evidence since the chiropractic report was not sworn to before a notary and thephysical therapy reports were not affirmed (see Grasso v Angerami, 79 NY2d 813,814-815 [1991]; Patterson v NY AlarmResponse Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747, 748 [2007]; Nociforo v Penna, 42 AD3d 514[2007]; see also Kunz v Gleeson, 9AD3d 480, 481 [2004]; Santoro v Daniel, 276 AD2d 478 [2000]). The hospitalrecords, which were properly relied upon, merely showed that the plaintiff was diagnosed with a[*2]back sprain. Sprains and strains are not serious injuries withinthe meaning of Insurance Law § 5102 (d) (see Washington v Cross, 48 AD3d 457 [2008]; Hasner v Budnik, 35 AD3d 366,367-368 [2006]).
Neither the affirmation of Dr. David Khanan, nor his reports, raised a triable issue of fact. Dr.Khanan concluded in his affirmation dated July 12, 2006 that the plaintiff sustained permanentinjuries as a result of the subject accident, yet his findings were based on examinations thatoccurred in 2004 and January 2005, and not upon a recent examination (see Morales v Theagene, 46 AD3d775, 776 [2007]; Ali vMirshah, 41 AD3d 748, 749 [2007]; Elgendy v Nieradko, 307 AD2d 251[2003]). The affirmation of Dr. Jean-Robert Desrouleaux also failed to raise a triable issue offact. In that affirmation, also dated July 12, 2006, Dr. Desrouleaux concluded that the plaintiff'scervical range of motion was restricted as a result of the subject accident. However, in hismedical report dated April 9, 2004, eight days after the subject accident, he noted that theplaintiff had normal range of motion in her neck (see Magarin v Kropf, 24 AD3d 733, 734 [2005]; Brown v Tairi Hacking Corp., 23AD3d 325, 326 [2005]; Doran vSequino, 17 AD3d 626 [2005]; Cantanzano v Mei, 11 AD3d 500 [2004]). Moreover, thesubmissions of both doctors further failed to acknowledge that the plaintiff was involved in aprior accident. These omissions rendered speculative the findings of both doctors that the injuriesand limitations noted in the plaintiff's spine were the result of the subject accident (see Moore v Sarwar, 29 AD3d752, 753 [2006]; Tudisco vJames, 28 AD3d 536, 537 [2006]; Bennett v Genas, 27 AD3d 601, 602 [2006]).
The magnetic resonance imaging reports concerning the plaintiff's cervical and lumbar spinemerely established that as of May and June 2004 the plaintiff showed evidence of herniated discsin the cervical and lumbar regions of her spine. The mere existence of a herniated disc is notevidence of a serious injury in the absence of objective evidence of the extent of the allegedphysical limitations resulting from the disc injury and its duration (see Sharma v Diaz, 48 AD3d 442[2008]; Mejia v DeRose, 35 AD3d407, 408 [2006]; Yakubov v CGTrans Corp., 30 AD3d 509, 510 [2006]; Cerisier v Thibiu, 29 AD3d 507, 508 [2006]; Kearse v New York City Tr. Auth., 16AD3d 45, 49-50 [2005]; Diaz v Turner, 306 AD2d 241, 242 [2003]). The plaintiff'saffidavit was insufficient to satisfy that requirement (see Young Soo Lee v Troia, 41 AD3d 469, 470 [2007]; Nannarone v Ott, 41 AD3d 441,442 [2007]; Vidor v Davila, 37AD3d 826, 827 [2007]).
Finally, the plaintiff failed to proffer any competent medical evidence that she sustained amedically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180days following the subject accident, from performing her usual and customary activities (see Roman v Fast Lane Car Serv., Inc.,46 AD3d 535, 536 [2007]; Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]).Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ., concur.