| Kuchero v Tabachnikov |
| 2008 NY Slip Op 06806 [54 AD3d 729] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Benny Kuchero, Appellant, v Steven Tabachnikov et al.,Respondents. |
—[*1] James G. Bilello, Westbury, N.Y. (Ahmed Elzoghby of counsel), for respondents StevenTabachnikov and Alexander Freyman. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondents Mario Duplessis and Riteway 1, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schneier, J.), dated December 22, 2006, which granted themotion of the defendants Steven Tabachnikov and Alexander Freyman, and the separate motionof the defendants Mario Duplessis and Riteway 1, Inc., for summary judgment dismissing thecomplaint on the ground that he did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is affirmed, with one bill of costs.
The defendants met their 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]). In opposition, the plaintiff failed to raise a triable issue offact. The affirmed medical report of Dr. Sergey Lugina, one of the plaintiff's treating physicians,noted that the plaintiff was examined in his office on February 4, 2003, and found to haverestricted range of motion in the cervical and lumbar regions of the spine. However, Dr. Luginafailed to adequately quantify those restrictions (see Duke v Saurelis, 41 AD3d 770 [2007]; Desamour v New York City Tr. Auth.,8 AD3d 326 [2004]).[*2]
The affirmation of Dr. Viktor Gribenko, another of theplaintiff's treating physicians, failed to raise a triable issue of fact. While Dr. Gribenko notedsignificant limitations in the plaintiff's range of motion in the cervical region of the spine as ofDecember 13, 2006, neither he nor the plaintiff proffered competent medical evidence showingany cervical range of motion limitations that were even roughly contemporaneous with thesubject accident (see D'Onofrio vFloton, Inc., 45 AD3d 525 [2007]; Morales v Daves, 43 AD3d 1118 [2007]; Rodriguez v Cesar, 40 AD3d 731[2007]; Borgella v D & L Taxi Corp.,38 AD3d 701 [2007]). Without admissible evidence of roughly contemporaneous rangeof motion limitations, the plaintiff could not have established the duration of the injuries requiredto raise a triable issue of fact as to whether he sustained a serious injury under the permanentconsequential limitation or significant limitation of use categories of the no-fault statute (see Ferraro v Ridge Car Serv., 49AD3d 498 [2008]).
The medical report of Dr. Robert Solomon, the plaintiff's treating radiologist, merelyrevealed that as of February 7, 2003, the plaintiff had a herniated disc at C5-6. The mereexistence of a herniated disc is not evidence of a serious injury in the absence of objectiveevidence of the extent of the alleged physical limitations resulting from the injury and itsduration (see Cornelius v Cintas Corp.,50 AD3d 1085 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]).
Contrary to the plaintiff's assertion, neither he nor his experts reasonably explained thelengthy gap in his treatment between the time he stopped treatment in April 2003 and his mostrecent examination by Dr. Gribenko in December 2006 (see Pommells v Perez, 4 NY3d 566 [2005]; Cornelius v Cintas Corp., 50 AD3d1085 [2008]; Berktas v McMillian,40 AD3d 563 [2007]; Waring vGuirguis, 39 AD3d 741 [2007]; Phillips v Zilinsky, 39 AD3d 728 [2007]).
The plaintiff failed to set forth any competent medical evidence to establish that he sustaineda medically-determined injury of a nonpermanent nature which prevented him from performinghis usual 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]). Rivera, J.P.,Lifson, Miller, Carni and Eng, JJ., concur.