| Cornelius v Cintas Corp. |
| 2008 NY Slip Op 04050 [50 AD3d 1085] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Alexander Cornelius, Plaintiff, and David Cornelius,Respondent, v Cintas Corporation et al., Appellants. |
—[*1] Dominic Recchia (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Cullen, J.), dated June 21, 2007, which denied their motionfor summary judgment dismissing the complaint insofar as asserted by the plaintiff DavidCornelius on the ground that he did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint insofar as asserted by the plaintiff David Corneliusis granted.
The defendants met their prima facie burden of showing that the plaintiff David Cornelius(hereinafter David) 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 NY2d345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Meyers v Bobower Yeshiva BneiZion, 20 AD3d 456 [2005]). In opposition, David failed to raise a triable issue of fact.
The submissions of Leon Bernstein, David's treating orthopedic surgeon, were insufficient toraise a triable issue of fact. Bernstein's projections of permanent injuries and limitations had noprobative value in the absence of a recent examination (see Ali v Mirshah, 41 AD3d 748 [2007]; Marziotto [*2]v Striano, 38 AD3d 623 [2007]; Elgendy v Nieradko,307 AD2d 251 [2003]). Furthermore, although Bernstein's report provided range of motionfindings, he failed to compare any of these findings to what is normal (see Page v Belmonte, 45 AD3d825 [2007]; Malave v Basikov,45 AD3d 539 [2007]; Fleury vBenitez, 44 AD3d 996 [2007]), and he failed to acknowledge in his reports oraffirmation that David was involved in a prior accident in which he injured his back and neck. Asa result, Bernstein's conclusion in his report dated September 20, 2005, that the injuries andlimitations in David's lumbar spine were caused by the subject accident, was speculative (see Moore v Sarwar, 29 AD3d 752[2006]; Tudisco v James, 28 AD3d536 [2006]; Bennett v Genas,27 AD3d 601 [2006]; Allyn vHanley, 2 AD3d 470 [2003]).
The "updated narrative report" of Aron Goldman, one of David's treating physicians, wasinsufficient to raise a triable issue of fact. This medical report merely contained conclusoryallegations tailored to meet statutory requirements (see Slavin v Associates Leasing, 273AD2d 372 [2000]; Zargary v Finisia Enters., 205 AD2d 683 [1994]). Furthermore,Goldman's conclusions that David sustained "significant limitations" in the use of the cervicaland lumbar regions of his spine and his left knee as a result of the subject accident werespeculative in light of the fact that Goldman never acknowledged David's prior accident (see Moore v Sarwar, 29 AD3d 752[2006]; Tudisco v James, 28 AD3d536 [2006]; Bennett v Genas,27 AD3d 601 [2006]; Allyn vHanley, 2 AD3d 470 [2003]), and never addressed the findings of the defendants'examining radiologist who concluded that David suffered from degenerative conditions in hiscervical spine, lumbar spine, and left knee that predated 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]).
Moreover, neither David nor his treating physicians adequately explained the lengthy gap inhis treatment between the time he stopped treatment in April 2004 and his most recentexamination performed by Bernstein on August 31, 2005 (see Pommells v Perez, 4 NY3d 566 [2005]; Wei-San Hsu v Briscoe Protective Sys.,Inc., 43 AD3d 916 [2007]; Bestman v Seymour, 41 AD3d 629 [2007]; Albano v Onolfo, 36 AD3d 728[2007]).
The submission of David's magnetic resonance imaging reports merely established that, as ofOctober and November 2003, he had a herniated nucleus pulposus at C5-6, bulging discs at C3through C7, a linear meniscal tear of the posterior horn of the medial meniscus, and bulging discsat L3 through S1. The mere existence of a herniated or bulging disc, and even a tear in a tendon,is not evidence of a serious injury in the absence of objective evidence of the extent of thealleged physical limitations resulting from the injury and its duration (see Shvartsman v Vildman, 47 AD3d700 [2008]; Tobias v Chupenko,41 AD3d 583 [2007]). No such objective medical evidence was submitted by David inopposition to the defendants' motion.
David also failed to set forth any competent medical evidence to establish that he sustained amedically-determined injury of a nonpermanent nature which prevented him from performing hisusual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc.,46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Fisher, J.P.,Florio, Angiolillo, Dickerson and Belen, JJ., concur.