| Luizzi-Schwenk v Singh |
| 2009 NY Slip Op 00510 [58 AD3d 811] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Denise Luizzi-Schwenk, Appellant, v Raspal Singh et al.,Respondents. |
—[*1] Robert J. Adams, Jr., LLC, Garden City, N.Y. (Maryellen David of counsel), for respondentsRaspal Singh and Cookie Cab Corp. Litchfield Cavo, LLP, New York, N.Y. (Sean H. Chung of counsel), for respondents Toni M.Panza and Robert A. Panza.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Parga, J.), dated December 20, 2007, which granted theseparate motions of the defendants, Raspal Singh and Cookie Cab Corp., and Toni M. Panza andRobert A. Panza, respectively, for summary judgment dismissing the complaint insofar asasserted against them on the ground that she did not sustain a serious injury within the meaningof Insurance Law § 5102 (d).
Ordered that the order is affirmed, with one bill of costs.
In support of their separate motions for summary judgment the defendants, Raspal Singh andCookie Cab Corp., and Toni M. Panza and Robert A. Panza, relied on the same submissions. Thedefendants met their prima facie burdens of showing that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident(see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact.[*2]
The plaintiff failed to raise a triable issue of fact as towhether she sustained a serious injury to her lumbar spine under the permanent limitation of useand/or the significant limitation of use categories of Insurance Law § 5102 (d), since shehas failed to proffer any competent medical evidence that revealed the existence of a significantrange of motion limitation in her lumbar spine that was contemporaneous with the subjectaccident (see Leeber v Ward, 55AD3d 563 [2008]; Ferraro v RidgeCar Serv., 49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]). Furthermore, theplaintiff failed to proffer any medical evidence that was based upon a recent examination (see Diaz v Lopresti, 57 AD3d 832[2008]; Sapienza v Ruggiero, 57AD3d 643 [2008]; Landicho vRincon, 53 AD3d 568 [2008]).
The affirmed magnetic resonance imaging (hereinafter MRI) report of Dr. Alan B.Greenfield dated March 17, 2005, merely revealed the existence of disc herniations at L4-5 andL5-S1, as well as a coexisting disc bulge at L5-S1. The affirmed MRI report of Dr. LindaHarkavy merely revealed, on January 16, 2006, the existence of disc herniations at L3-4, L4-5,and L5-S1. The mere existence of a herniated or bulging disc is not evidence of a serious injuryin the absence of objective evidence of the extent of the alleged physical limitations resultingfrom 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 [2005]). Neither Dr. Greenfield nor Dr. Harkavyset forth an opinion of the cause of the herniated or bulging discs noted within their respectivereports (see Collins v Stone, 8AD3d 321 [2004]). The self-serving affidavit of the plaintiff was insufficient to raise atriable issue of fact (see Sealy vRiteway-1, Inc., 54 AD3d 1018 [2008]).
Lastly, the plaintiff failed to submit competent medical evidence that the injuries shesustained in the subject accident rendered her unable to perform substantially all of her 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 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Spolzino,J.P., Covello, McCarthy and Belen, JJ., concur.