| Thompson v Saunders |
| 2008 NY Slip Op 10606 [57 AD3d 971] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Austin R. Thompson, Appellant, v Juanita A. Saunders,Respondent. |
—[*1] Boeggeman, George & Corde, P.C., White Plains, N.Y. (Cynthia Dolan of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Rosengarten, J.), dated August 22, 2007, which granted thedefendant's cross motion for summary judgment dismissing the complaint on the ground that hedid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), anddenied, as academic, his motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The defendant made a prima facie showing that the plaintiff did not sustain a serious injurywithin 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]), shifting the burden to the plaintiff toproduce sufficient evidence to raise a triable issue of fact.
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to producecompetent medical evidence of restrictions in range of motion roughly contemporaneous with thesubject accident (see LaFerlita v Seagull 2000, Inc., 54 AD3d 905 [2008]). Since thedefendant's doctor referred to the results of magnetic resonance imaging examinationsdemonstrating bulging and herniated discs, those [*2]results wereproperly before the court (see Zarate v McDonald, 31 AD3d 632 [2006]; Ayzen vMelendez, 299 AD2d 381 [2002]). However, the mere existence of bulging or herniateddiscs is not evidence of a serious injury in the absence of objective evidence of the extent of thealleged physical limitations resulting therefrom (see LaFerlita v Seagull 2000, Inc., 54AD3d at 906; Kearse v New York City Tr. Auth., 16 AD3d 45, 50 [2005]). Further, theplaintiff admitted that he continued working after the accident, and failed to submit competentmedical evidence that he was unable to perform substantially all of his daily activities for not lessthan 90 of the first 180 days subsequent to the subject accident (see LaFerlita v Seagull 2000,Inc., 54 AD3d at 906).
In light of the foregoing, we need not reach the plaintiff's remaining contention. Rivera, J.P.,Florio, Angiolillo, McCarthy and Chambers, JJ., concur.