| Washington v Mendoza |
| 2008 NY Slip Op 10608 [57 AD3d 972] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Carl Washington, Respondent, v Ariel A. Mendoza,Appellant. |
—[*1] Gratt & Associates, P.C., Brooklyn, N.Y. (Glenda Flores of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Saitta, J.), dated January 31, 2008, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious 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 of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident, which occurred on March 17, 2002 (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, theplaintiff failed to raise a triable issue of fact. The so-called "Certification" from the plaintiff'streating physician Dr. Gustave Drivas was insufficient to affirm the contents of any of the reportsor records that were annexed thereto, including his own reports. Thus, the reports or records ofDr. Drivas, Dr. Deepak Sachdev, Dr. Bryan Douglas, and Dr. Valery Kalika were without anyprobative value since they were unaffirmed or unsworn (see Grasso v Angerami, 79NY2d 813 [1991]; Uribe-Zapata v Capallan, 54 AD3d 936 [2008]; Patterson v NYAlarm Response Corp., 45 AD3d 656 [2007]; [*2]Verettev Zia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]; Pagano vKingsbury, 182 AD2d 268 [1992]). The same conclusion applies to the unaffirmed magneticresonance imaging reports of Dr. Jeffrey Chess.
While the plaintiff proffered results of a recent examination by Dr. Joseph Paul, the plaintiff'sexamining orthopedic surgeon, in which objective testing revealed significant limitations in therange of the motion of the plaintiff's cervical spine, lumbar spine, and left shoulder ranges ofmotion, neither the plaintiff nor Dr. Paul proffered competent medical evidence demonstratingthe existence of similar range of motion limitations that were contemporaneous with the subjectaccident (see Leeber v Ward, 55 AD3d 563 [2008]; Ferraro v Ridge Car Serv., 49AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]).
The affirmed magnetic imaging reports of Dr. Robert Scott Schepp concerning the plaintiff'scervical spine and left shoulder merely revealed that as of March and April 2002, the plaintiffhad disc bulges at C4-5, C5-6, and C6-7, as well as Grade III tendonitis of the distal,supraspinatus tendon of the left shoulder. The mere existence of a bulging disc, and even a tear ina tendon, is not evidence of a serious injury in the absence of objective evidence of the extent ofthe alleged physical limitations resulting from the injury and its duration (see Cornelius vCintas Corp., 50 AD3d 1085, 1087 [2008]; Shvartsman v Vildman, 47 AD3d 700[2008]; Tobias v Chupenko, 41 AD3d 583 [2007]). The self-serving affidavit of theplaintiff was insufficient to meet this requirement (see Sealy v Riteway-1, Inc., 54 AD3d1018 [2008]; Hargrove v New York City Tr. Auth., 49 AD3d 692 [2008]; Shvartsmanv Vildman, 47 AD3d 700 [2008]).
Lastly, the plaintiff failed to submit competent medical evidence that the injuries he allegedlysustained in the subject 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 (seeRabolt v Park, 50 AD3d 995 [2008]; Roman v Fast Lane Car Serv., Inc., 46 AD3d535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Ritter, Dillon, Carniand Leventhal, JJ., concur.