| Leeber v Ward |
| 2008 NY Slip Op 07629 [55 AD3d 563] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Renne Leeber, Respondent, v Patricia Dono Ward,Appellant. |
—[*1] Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y. (Frank A. Tinari of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of theSupreme Court, Suffolk County (Tanenbaum, J.), dated March 3, 2008, which denied her motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the complaint is granted.
The defendant met her prima facie burden by showing that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure 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 of fact. While the affidavit ofthe plaintiff's treating chiropractor set forth significant range-of-motion limitations in the plaintiff'scervical and lumbar spine based on a recent examination, neither he nor the plaintiff proffered objectivemedical evidence that revealed the existence of limitations in her spine that were contemporaneous withthe subject accident (see Budhram vOgunmoyin, 53 AD3d 640 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]; Shvartsman v Vildman, 47 AD3d 700[2008]; D'Onofrio v Floton, Inc., 45AD3d 525 [2007]; Borgella v D & LTaxi Corp., 38 AD3d 701, 702 [2007]).[*2]
The reports of the plaintiff's treating radiologist, Dr. RussellWeinstein, concerning the plaintiff's November 2004 cervical spine and lumbar spine magneticresonance imaging films, failed to raise a triable issue of fact. Those reports merely noted that discbulges were observed at C3-4, C5-6, C6-7, as well as at L4-5 and L5-S1. Dr. Weinstein did not, inhis reports or his affirmations, offer his opinion on the cause of those findings (see Collins v Stone, 8 AD3d 321, 322[2004]).
The self-serving affidavit of the plaintiff was also insufficient to raise a triable issue of fact as towhether she sustained a serious injury under the no-fault statute (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007];Fisher v Williams, 289 AD2d 288, 289 [2001]).
The plaintiff also failed to set forth any competent medical evidence to establish that she sustained amedically-determined injury of a nonpermanent nature which prevented her from performing her usualand customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). The plaintiff's owndeposition testimony established that she missed, at most, a month of full-time work as a result of thesubject accident. Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur.