| Smeja v Fuentes |
| 2008 NY Slip Op 06556 [54 AD3d 326] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Lynne Smeja, Appellant, v Juan Fuentes et al.,Respondents. |
—[*1] Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from (1) so much of an order of the Supreme Court, Suffolk County (Doyle, J.), enteredAugust 15, 2006, as granted the defendants' motion for summary judgment dismissing thecomplaint on the ground that she did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d), and (2) a judgment of the same court dated September 15, 2006, which,upon the order, is in favor of the defendants and against her, dismissing the complaint. Thenotice of appeal from the order is deemed also to be a notice of appeal from the judgment (seeCPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
The Supreme Court correctly concluded that thedefendants met their initial prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact. The affirmed report of Dr.Edward Firouztale, dated February 23, 2006, failed to raise a triable issue of fact because whileDr. Firouztale noted that the plaintiff, on various dates, showed "decreased" range of motion inthe cervical spine, he failed to adequately quantify or qualify those restrictions (see Toure vAvis Rent A Car Sys., 98 NY2d at 350-351).
The magnetic resonance imaging (hereinafter MRI) reports of Dr. Mark Lodespoto and Dr.Seth Mankes were not competent evidence since they were unaffirmed (see Patterson v NY Alarm Response Corp.,45 AD3d 656 [2007]; Verette vZia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]; see also Grasso vAngerami, 79 NY2d 813 [1991]; Pagano v Kingsbury, 182 AD2d 268 [1992]). Thesame is true of almost all of the reports of Dr. Donald Holzer submitted by the plaintiff, with theexception of his reports dated May 8, 2002, and March 12, 2003. Those reports were properlyrelied upon by the plaintiff since the latter report was relied upon by the defendants and theresults of the former report were noted in the report of the defendant's examining neurologist, Dr.Edward Weiland (see Kearse v New York City Tr. Auth., 16 AD3d at 47 n 1; see also Zarate v McDonald, 31 AD3d632 [2006]). Despite the fact that both reports were properly relied upon by the plaintiff,they failed to raise a triable issue of fact. In the report dated May 8, 2002, while Dr. Holzer setforth cervical spine ranges of motion concerning the plaintiff, he failed to compare those findingsto what is normal (see Page v Belmonte,45 AD3d 825 [2007]; Malave vBasikov, 45 AD3d 539 [2007]; Fleury v Benitez, 44 AD3d 996 [2007]; Nociforo v Penna, 42 AD3d 514,515 [2007]), and the report dated March 12, 2003, actually showed that on that date, the plaintiffhad full range of motion in her cervical spine.
Although the MRI reports of Dr. Robert Peyster and Dr. Bonnie Rosen also were properlyrelied upon by the plaintiff, neither report raised a triable issue of fact since they merely notedthat as of May 17, 2002, and January 25, 2004, there was evidence that the plaintiff had herniatedand bulging discs in the cervical spine at C3-4, C4-5, and C6-7, along with evidence thatdegenerative disc disease existed at those same levels. The mere existence of a herniated orbulging disc is not evidence of a serious injury in the absence of objective evidence of the extentof the alleged physical limitations resulting from the disc injury and its duration (see Sharma v Diaz, 48 AD3d 442[2008]; Mejia v DeRose, 35 AD3d407 [2006]; Yakubov v CG TransCorp., 30 AD3d 509 [2006]; Cerisier v Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694[2006]; Kearse v New York City Tr.Auth., 16 AD3d 45 [2005]; Diaz v Turner, 306 AD2d 241 [2003]). Further,neither Dr. Peyster nor Dr. Rosen authored any opinion on the cause of the findings they madewithin their own reports (see Collins vStone, 8 AD3d 321, 322 [2004]). The affidavit of the plaintiff was insufficient to raise atriable issue of fact (see Young Soo Leev Troia, 41 AD3d 469 [2007]; Nannarone v Ott, 41 AD3d 441 [2007]; Vidor v Davila, 37 AD3d 826[2007]). Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ.,concur.