| Sealy v Riteway-1, Inc. |
| 2008 NY Slip Op 07230 [54 AD3d 1018] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Curtis V. Sealy, 3rd, Appellant, v Riteway-1, Inc., et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated August 8, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants met their prima facie burden by 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]; seealso Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]). In opposition, theplaintiff failed to raise a triable issue of fact. Dr. Scott Leist, the plaintiff's treating chiropractor,concluded in his affidavit that the plaintiff sustained a permanent disability. However, while Dr.Leist provided recent range-of-motion findings which showed that the plaintiff had significantrange-of-motion limitations in the lumbar and cervical regions of his spine, neither he nor theplaintiff proffered competent objective medical evidence that showed range of motion limitationsin those regions of his spine that were roughly contemporaneous with the subject accident (see Silla v Mohammad, 52 AD3d681 [2008]; Perdomo v Scott,50 AD3d 1115 [2008]; Scotto vSuh, 50 AD3d 1012 [2008]; Ferraro v Ridge Car Serv.,[*2]49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]; Morales v Daves, 43 AD3d 1118[2007]; Rodriguez v Cesar, 40AD3d 731, 733 [2007]; Borgella vD & L Taxi Corp., 38 AD3d 701, 702 [2007]). The affirmations of Dr. Richard J.Rizzuti, the plaintiff's treating radiologist, merely established that as of July 10, 2003, 1½months after the subject accident, the plaintiff had evidence of herniated discs at L4-5 and L5-S1,and bulging discs at C5-6 and C6-7. The mere existence of herniated or bulging discs 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 Kilakos v Mascera, 53 AD3d527 [2008]; Cerisier v Thibiu,29 AD3d 507 [2006]; Bravo vRehman, 28 AD3d 694 [2006]; Kearse v New York City Tr. Auth., 16 AD3d 45 [2005]). Theself-serving affidavit of the plaintiff was insufficient to meet this requirement (see Hargrove v New York City Tr. Auth.,49 AD3d 692 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]; Tobias v Chupenko, 41 AD3d 583[2007]).
The plaintiff failed to explain the lengthy gap between when he stopped treatment in June2005 and his most recent examination by Dr. Leist in January 2007 (see Pommells v Perez, 4 NY3d566 [2005]; Cornelius v CintasCorp., 50 AD3d 1085 [2008]; Berktas v McMillian, 40 AD3d 563 [2007]; Waring v Guirguis, 39 AD3d 741[2007]; Phillips v Zilinsky, 39AD3d 728 [2007]). The plaintiff also failed to proffer competent medical evidence showingthat he was unable to perform substantially all of his daily activities for not less than 90 of thefirst 180 days subsequent to the subject accident (see Ramirez v Parache, 31 AD3d 415 [2006]; Sainte-Aime vHo, 274 AD2d 569 [2000]). Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur.