| Eldrainy v Hassain |
| 2008 NY Slip Op 08449 [56 AD3d 419] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Islam H. Eldrainy, Respondent, v Kamal Hassain et al.,Appellants. |
—[*1] Richard M. Altman, Bronx, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Taylor, J.), entered January 29, 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 is granted.
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 vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact. While the sworn medical report of Dr. Jeffrey Rauch and the affirmed medicalreport of Dr. Arkadiy Shusterman set forth significant range-of-motion limitations in theplaintiff's cervical and lumbar spine based on recent examinations, neither these experts nor theplaintiff proffered objective medical evidence that revealed the existence of limitations in hisspine that were contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d498 [2008]; D'Onofrio v Floton,Inc., 45 AD3d 525 [2007]).
The affirmation of Dr. Harvey Lefkowitz essentially established that, as of February [*2]11, 2004, there was evidence that the plaintiff had herniated discs atC4-5 and C5-6. The mere existence of a herniated disc is not evidence of a serious injury in theabsence of objective evidence of the extent of the alleged physical limitations resulting from thedisc injury and its duration (see Sealy vRiteway-1, Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527 [2008], lv denied11 NY3d 707 [2008]; Cerisier v Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694[2006]; Kearse v New York City Tr.Auth., 16 AD3d 45 [2005]). The plaintiff's self-serving affidavit was insufficient to meetthat requirement (see Rabolt v Park,50 AD3d 995 [2008]; Young SooLee v Troia, 41 AD3d 469 [2007]; Nannarone v Ott, 41 AD3d 441 [2007]). The plaintiff's remainingsubmissions did not constitute competent evidence sufficient to oppose the defendants' motionsince they were neither sworn to, affirmed, notarized, nor certified (see Grasso vAngerami, 79 NY2d 813 [1991]; Uribe-Zapata v Capallan, 54 AD3d 936 [2008]; Patterson v NY Alarm Response Corp.,45 AD3d 656 [2007]; Verette vZia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]; Pagano vKingsbury, 182 AD2d 268 [1992]; see also Mejia v DeRose, 35 AD3d 407 [2006]; Kunz v Gleeson, 9 AD3d 480[2004]).
Finally, the plaintiff failed to submit competent medical evidence that the injuries heallegedly sustained in the accident rendered him unable to perform substantially all of his dailyactivities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v Park, 50 AD3d 995[2008]; Roman v Fast Lane Car Serv.,Inc., 46 AD3d 535, 536 [2007]; Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]).Skelos, J.P., Ritter, Dillon, Carni and Leventhal, JJ., concur.