| Collado v Satellite Solutions & Electronics of WNY, LLC |
| 2008 NY Slip Op 08444 [56 AD3d 411] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Tiffany R. Collado, Respondent, v Satellite Solutions &Electronics of WNY, LLC, Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Weiss, J.), dated January 31, 2008, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain 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 on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) is granted.
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. While the submissions of Dr. David Adin, one of the plaintiff's treating osteopaths, revealedsignificant range of motion limitations of her cervical spine and right shoulder that were based ona recent examination, the plaintiff failed to proffer objective medical evidence showing range ofmotion limitations in her spine, or anywhere else, that were contemporaneous with the subjectaccident (see LaFerlita v Seagull 2000,Inc., 54 AD3d 905 [2008]; Kurin v Zyuz, 54 AD3d 902 [2008]; Hackett v AAA Expedited Frgt. Sys.,Inc., 54 AD3d 721 [2008]; Camacho v Dwelle, 54 AD3d 706 [2008]; Perdomo v Scott, 50 AD3d 1115[2008]; Ferraro v Ridge Car Serv.,49 AD3d 498 [2008]). In fact, the only quantified range of motion findings submitted bythe plaintiff were in the report of Dr. Adin dated October 16, 2007. Those findings were based onan examination that occurred a year after the subject accident (see Suk [*2]Ching Yeung v Rojas, 18 AD3d 863 [2005]).
The affirmation of Dr. Jacob Lichy, the plaintiff's treating radiologist, merely noted thefindings contained in the magnetic resonance imaging (hereinafter MRI) reports of January 13,2007, which revealed evidence of a disc bulge at C3-4 and a tear of the anterior and posterior lipsof the glenoid labrum in the plaintiff's right shoulder. The mere existence of a herniated orbulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the injury andits duration (see Cornelius v CintasCorp., 50 AD3d 1085, 1087 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]). Furthermore, Dr.Lichy expressed no opinion on the cause of the findings he made as a result of his review of theplaintiff's MRI reports (see Collins vStone, 8 AD3d 321, 322 [2004]).
Moreover, neither the plaintiff nor her experts adequately explained the 11-month gapbetween her last examination by Dr. Christopher Kyriakides on November 21, 2006, and hermost recent examination by Dr. Adin on October 16, 2007 (see Pommells v Perez, 4 NY3d 566 [2005]; LaFerlita v Seagull 2000, Inc., 54AD3d 905 [2008]; Kasel vSzczecina, 51 AD3d 872 [2008]). In fact, her own deposition testimony, upon which sherelied in opposing the defendants' motion, revealed that her treatment was stopped because herdoctor said that she did not need it any longer.
Based on the evidence submitted, the plaintiff also failed to proffer competent medicalevidence that she was unable to perform substantially all of her daily activities for not less than90 of the first 180 days subsequent to the subject accident (see LaFerlita v Seagull 2000, Inc., 54 AD3d 905 [2008];Sainte-Aime v Ho, 274 AD2d 569 [2000]). Fisher, J.P., Lifson, Covello and Balkin, JJ.,concur.