| Joseph v A & H Livery |
| 2009 NY Slip Op 00349 [58 AD3d 688] |
| January 20, 2009 |
| Appellate Division, Second Department |
| David Michael Joseph, Respondent, v A and H Livery etal., Appellants, et al., Defendants. |
—[*1] Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants A and H Livery andJean Ermilus appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Bayne, J.), dated March 19, 2008, as denied their motion for summary judgmentdismissing the complaint insofar as asserted against them 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 insofar as appealed from, on the law, with costs, and themotion of the defendants A and H Livery and Jean Ermilus for summary judgment dismissingthe complaint insofar as asserted against them is granted.
The defendants A and H Livery and Jean Ermilus (hereinafter together the defendants) mettheir prima facie burden of showing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]).Contrary to the Supreme Court's determination, in opposition, the plaintiff failed to raise a triableissue of fact.
While the report of Dr. Jerry Lubliner, the plaintiff's treating orthopedist, set forth significantrange-of-motion limitations in the plaintiff's cervical and lumbar spine based on a recentexamination, the plaintiff failed to proffer competent medical evidence revealing the existence of[*2]limitations in these regions of his spine that were roughlycontemporaneous 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]; Borgella v D & L Taxi Corp., 38 AD3d 701, 702 [2007]).Moreover, Dr. Lubliner failed to acknowledge that the plaintiff sustained injuries to his neck andback as a result of a prior accident. Accordingly, Dr. Lubliner's conclusions that the injuries andlimitations noted in the plaintiff's cervical and lumbar spine resulted from the subject accidentwere merely speculative (see Rabolt vPark, 50 AD3d 995 [2008]; Penaloza v Chavez, 48 AD3d 654 [2008]; Zinger v Zylberberg, 35 AD3d851 [2006]; Bennett v Genas,27 AD3d 601 [2006]; Allyn vHanley, 2 AD3d 470 [2003]).
The affirmed magnetic resonance imaging (hereinafter MRI) reports of Dr. Mark Shapiroalso failed to raise a triable issue of fact. Dr. Shapiro's reports merely established that as ofNovember 17, 2003 and November 25, 2003, approximately one month after the subjectaccident, the plaintiff had disc bulges at C3-4, C4-5, C5-6, C6-7, and L4-5, as well as a discherniation at L5-S1. The mere existence of a herniated or bulging disc is not evidence of aserious injury in the absence of objective evidence of the extent of the alleged physicallimitations resulting from the disc injury and its duration (see Sealy v Riteway-1, Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527[2008]; Cerisier v Thibiu, 29 AD3d507 [2006]; Kearse v New YorkCity Tr. Auth., 16 AD3d 45 [2005]). The plaintiff's self-serving affidavit wasinsufficient to satisfy that requirement (see Rabolt v Park, 50 AD3d 995 [2008]; Young Soo Lee v Troia, 41 AD3d469 [2007]; Nannarone v Ott,41 AD3d 441 [2007]).
The plaintiff's remaining submissions did not constitute competent evidence sufficient tooppose the defendants' motion since they were unsworn, unaffirmed, or uncertified (seeGrasso v Angerami, 79 NY2d 813 [1991]; Uribe-Zapata v Capallan, 54 AD3d 936 [2008]; Patterson v NY Alarm Response Corp.,45 AD3d 656 [2007]; Nociforov Penna, 42 AD3d 514 [2007]; Borgella v D & L Taxi Corp., 38 AD3d at 702).
Finally, the plaintiff failed to submit competent medical evidence that he sustained amedically-determined injury of a nonpermanent nature that prevented him from performing hisusual and customary activities for not less than 90 days of the first 180 days subsequent to thesubject accident (see Eldrainy vHassain, 56 AD3d 419 [2008]; Penaloza v Chavez, 48 AD3d 654 [2008]; Sainte-Aime v Ho,274 AD2d 569, 570 [2000]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ.,concur.