| Pompey v Carney |
| 2009 NY Slip Op 00666 [59 AD3d 416] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Kelvin Pompey, Appellant, v Thomas J. Carney,Respondent. |
—[*1] Russo & Apoznanski, Westbury, N.Y. (Susan J. Mitola of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Parga, J.), dated December 12, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant met his prima facie burden of establishing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact. The records and reports generated by Wellstar Medical, P.C., were without anyprobative value in opposing the defendant's motion since they were neither affirmed nor sworn(see Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Uribe-Zapata v Capallan, 54 AD3d936, 937 [2008]; Patterson v NYAlarm Response Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747, 748 [2007]; Nociforo v Penna, 42 AD3d 514,515 [2007]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]). The affirmation of Dr.Alan Berger, the plaintiff's treating chiropractor, which was not notarized, and his annexedreports, which also were not notarized, did not constitute competent medical evidence (seeSantoro v Daniel, 276 AD2d 478 [2000]).
The medical report of Dr. Aric Hausknecht, the plaintiff's examining neurologist, waswithout [*2]any probative value since he clearly relied on theunsworn reports of others in coming to his conclusions (see Sorto v Morales, 55 AD3d 718 [2008]; Malave v Basikov, 45 AD3d 539[2007]; Furrs v Griffith, 43 AD3d389 [2007]; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [1995]).Dr. Mark Shapiro's magnetic resonance imaging report concerning the plaintiff's lumbosacralspine merely revealed herniated discs at L4-5 and L5-S1. "The mere existence of a herniated orbulging disc, and even radiculopathy, is not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the disc injuryand its duration" (Patterson v NY Alarm Response Corp., 45 AD3d at 656; see Sealy v Riteway-1, Inc., 54 AD3d1018 [2008]; Kilakos vMascera, 53 AD3d 527, 528-529 [2008]; Cerisier v Thibiu, 29 AD3d 507, 508 [2006]; Bravo v Rehman, 28 AD3d 694,695 [2006]; Kearse v New York CityTr. Auth., 16 AD3d 45, 49-50 [2005]).
Furthermore, the plaintiff failed to explain the gap in his treatment history between April2005, when he stopped treatment, and his most recent examination in July 2007 (see Pommells v Perez, 4 NY3d566, 574 [2005]; Berktas vMcMillian, 40 AD3d 563, 564 [2007]; Waring v Guirguis, 39 AD3d 741, 742 [2007]).
Lastly, the plaintiff failed to submit competent medical evidence that the injuries heallegedly sustained 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, 996 [2008]; Roman v FastLane Car Serv., Inc., 46 AD3d 535, 536 [2007]; Sainte-Aime v Ho, 274 AD2d569, 570 [2000]). Rivera, J.P., Dillon, Miller, Balkin and Leventhal, JJ., concur.