| Perdomo v Scott |
| 2008 NY Slip Op 04067 [50 AD3d 1115] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Eulalio Perdomo et al., Respondents, et al.,Plaintiff, v Anthony M. Scott et al., Appellants. |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Mitchell Goldklang of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from somuch of an order of the Supreme Court, Suffolk County (Pitts, J.), dated April 17, 2007, asdenied those branches of their motion which were for summary judgment dismissing thecomplaint insofar as asserted by the plaintiffs Eulalio Perdomo and Maribel Navarro on theground that neither of those plaintiffs sustained a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the appellants payable by the respondents, and those branches of the appellants' motion whichwere for summary judgment dismissing the complaint insofar as asserted by the respondents aregranted.
The defendants met their prima facie burden of showing that neither the plaintiff EulalioPerdomo nor the plaintiff Maribel Navarro sustained a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inopposition, Perdomo and Navarro failed to raise a triable issue of fact.
Perdomo and Navarro relied upon medical reports from their treating chiropractor. However,those reports were not competent evidence because they were not in affidavit form (seeCPLR 2106; Coburn v Samuel, 44AD3d 698 [2007]; Laguerre vChavarria, 41 AD3d 437 [2007]; Kunz v Gleeson, 9 AD3d [*2]480, 481 [2004]). Moreover, those reports failed to show any rangeof motion limitations in Perdomo's spine or left shoulder, or in Navarro's spine, contemporaneouswith the subject accident (see D'Onofriov Floton, Inc., 45 AD3d 525 [2007]; Morales v Daves, 43 AD3d 1118 [2007]; Rodriguez v Cesar, 40 AD3d 731[2007]; Borgella v D & L TaxiCorp., 38 AD3d 701 [2007]).
Perdomo and Navarro also relied upon affirmed magnetic resonance imaging reports ofPerdomo's lumbar spine and Navarro's cervical and lumbar spine. While the radiologists whoauthored those reports observed bulging discs, the mere existence of a bulging 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, 407-408 [2006]; Yakubov vCG Trans Corp., 30 AD3d 509, 510 [2006]; Cerisier v Thibiu, 29 AD3d 507, 508 [2006]; Bravo v Rehman, 28 AD3d 694,695 [2006]).
Finally, Perdomo and Navarro failed to proffer competent medical evidence demonstratingthat either of them sustained a medically-determined injury of a nonpermanent nature whichprevented them, for 90 of the 180 days following the subject accident, from performing theirusual and customary activities (seeRoman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536 [2007]; Sainte-Aime vHo, 274 AD2d 569, 570 [2000]). Skelos, J.P., Santucci, Covello, McCarthy and Chambers,JJ., concur. [See 2007 NY Slip Op 30868(U).]