| LaFerlita v Seagull 2000, Inc. |
| 2008 NY Slip Op 07093 [54 AD3d 905] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Frank LaFerlita et al., Respondents, v Seagull 2000, Inc., etal., Appellants. |
—[*1] Reingold & Tucker, Brooklyn, N.Y. (Abraham Reingold of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Schack, J.), dated September 4, 2007, which deniedtheir motion for summary judgment dismissing the complaint on the ground that the plaintiffFrank LaFerlita did not sustain a serious injury within the meaning of Insurance Law §5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The Supreme Court correctly determined that the defendants met their prima facie burden ofshowing that the plaintiff Frank LaFerlita (hereinafter the injured 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]). The Supreme Court erred, however, in concluding that theplaintiffs' submissions raised a triable issue of fact. The report of Dr. Mark Cadden, one of theinjured plaintiff's chiropractors, was not competent evidence since it is not sworn before a notary(see Rabolt v Park, 50 AD3d995 [2008]; Casas v Montero,48 AD3d 728 [2008]; Santoro v Daniel, 276 AD2d 478 [2000]). The affidavit ofDr. Richard Hurwitz, another of the injured plaintiff's chiropractors, merely noted that heexamined the injured plaintiff on July 6, 2007. While Dr. Hurwitz noted that the injured plaintiffhad range-of-motion limitations in his cervical and lumbar spine based on a recent examination,neither he nor the plaintiffs proffered competent medical evidence that showed range-of-motionlimitations in the injured [*2]plaintiff's spine that werecontemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]; see also Ferraro v Ridge Car Serv., 49AD3d 498 [2008]).
The affidavit of Dr. Harold S. Parnes, the injured plaintiff's treating radiologist, along withhis magnetic resonance imaging reports, merely revealed that as of February 2004 and March2004 the injured plaintiff had certain bulging and herniated discs. The mere existence of bulgingor herniated discs is not evidence of a serious injury in the absence of objective evidence of theextent of the alleged physical limitations resulting from the disc injuries and their duration (see Siegel v Sumaliyev, 46 AD3d666 [2007]; Yakubov v CG TransCorp., 30 AD3d 509, 510 [2006]; Kearse v New York City Tr. Auth., 16 AD3d 45, 49 [2005]). Theaffidavit of the injured plaintiff failed to raise a triable issue of fact (see Casas v Montero, 48 AD3d728 [2008]; Roman v Fast Lane CarServ., Inc., 46 AD3d 535 [2007]).
Moreover, neither the plaintiffs nor Dr. Hurwitz adequately explained the gap in the injuredplaintiff's treatment between February 11, 2005, when he was last treated by Dr. Cadden, and hismost recent examination on July 6, 2007 by Dr. Hurwitz (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Berktas v McMillian, 40 AD3d563, 564 [2007]; Waring vGuirguis, 39 AD3d 741, 742 [2007]).
The plaintiffs also failed to submit competent medical evidence that the injured plaintiff wasunable to perform substantially all of his daily activities for not less than 90 of the first 180 dayssubsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569 [2000]).Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.