| Luna v Mann |
| 2009 NY Slip Op 00357 [58 AD3d 699] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Gabriel Luna et al., Respondents, v Ullah Saif Mann et al.,Respondents, and Drissa Kone et al., Appellants. |
—[*1] Michael A. Ruiz, New York, N.Y., for plaintiffs-respondents.
In an action to recover damages for personal injuries, the defendants Drissa Kone andFollow Me Transit, Inc., appeal from an order of the Supreme Court, Kings County (Solomon,J.), dated March 28, 2008, which granted the plaintiffs' motion for leave to reargue theiropposition to the prior motion of the defendants Drissa Kone and Follow Me Transit, Inc., forsummary judgment dismissing the complaint insofar as asserted by the plaintiff Roberto Floresagainst them on the ground that he did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d), which had been granted in an order dated October 25, 2007,and upon reargument, denied their motion for summary judgment.
Ordered that the order dated March 28, 2008 is modified, on the law, by deleting theprovision thereof which, upon reargument, denied the motion of the defendants Drissa Kone andFollow Me Transit, Inc., for summary judgment dismissing the complaint insofar as asserted bythe plaintiff Roberto Flores against them on the ground that he did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d), and substituting therefor a provisionadhering to the original determination in the order dated October 25, 2007 granting the motion ofthe defendants Drissa Kone and Follow Me Transit, Inc., for summary judgment; as so modified,the order dated March 28, 2008 is affirmed, with costs to the appellants.
Contrary to the contention of the defendants Drissa Kone and Follow Me Transit, Inc.(hereinafter together the appellants), the Supreme Court providently exercised its discretion ingranting the plaintiffs' motion for leave to reargue (see E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653,654 [2007]; see [*2]also Pimentel v Mesa, 28 AD3d 629 [2006]). However,upon reargument, the Supreme Court erred in failing to adhere to its original determinationgranting the appellants' motion for summary judgment. The appellants met their prima facieburden of showing that the plaintiff Roberto Flores 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]).In opposition, the plaintiffs failed to raise a triable issue of fact as to whether Flores sustained aserious injury. The report of Dr. Barry Pinchefsky dated June 10, 2005, the EMG report of Dr.Rey Bello dated June 14, 2004, the report of Dr. Vincent Vasile dated June 10, 2005, and thecomputerized range-of-motion test reports dated May 12, 2004, June 9, 2004, and July 21, 2004,respectively, were all without any probative value since they were unsworn or unaffirmed(see Grasso v Angerami, 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 v Kingsbury,182 AD2d 268 [1992]).
The affirmation of Dr. Stanley Liebowitz, Flores' treating orthopedist, was insufficient toraise a triable issue of fact as to whether Flores sustained a serious injury since Dr. Liebowitzclearly relied solely on the unsworn or unaffirmed reports of others in reaching his conclusions(see Sorto v Morales, 55 AD3d718 [2008]; Malave v Basikov,45 AD3d 539 [2007]; Furrs vGriffith, 43 AD3d 389 [2007]; Friedman v U-Haul Truck Rental, 216 AD2d266 [1995]).
The affirmed magnetic resonance imaging reports of Dr. Ravindra Ginde merely establishedthat Flores had bulging discs in his cervical spine and a herniated disc in his lumbar spine as ofApril and May 2004. 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]; Bravo v Rehman,28 AD3d 694 [2006]; Kearse vNew York City Tr. Auth., 16 AD3d 45, 49 [2005]). The self-serving affidavit of Floreswas insufficient to meet 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]).
Lastly, the plaintiffs failed to submit competent medical evidence that the injuries allegedlysustained by Flores in the subject accident rendered him unable to perform substantially all of hisdaily activities for not less than 90 days of the first 180 days subsequent to the subject accident(see Rabolt v Park, 50 AD3d995 [2008]; Roman v Fast LaneCar Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569[2000]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.