| Ponciano v Schaefer |
| 2009 NY Slip Op 01206 [59 AD3d 605] |
| February 17, 2009 |
| Appellate Division, Second Department |
| Sirsa V. Ponciano et al., Respondents, v William C.Schaefer, Appellant. |
—[*1] Fotopoulos, Rosenblatt & Green, New York, N.Y. (Dimitrios C. Fotopoulos of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Tanenbaum, J.), dated March 3, 2008, which denied hismotion for summary judgment dismissing the complaint on the ground that neither of theplaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The defendant satisfied his prima facie burden of showing that neither of the plaintiffssustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955, 956-957 [1992]).
In opposition, the plaintiffs failed to raise a triable issue of fact. The reports of Dr. Louis C.Rose, dated March 21, 2005, concerning the plaintiffs, as well as the report of Dr. Mario Nelsondated May 11, 2005, concerning only the plaintiff Aurora Ponciano, were without any probativevalue in opposing the defendant's motion because they were unaffirmed (see Grasso vAngerami, 79 NY2d 813 [1991]; Uribe-Zapata v Capallan, 54 AD3d 936 [2008]; Patterson v NY Alarm ResponseCorp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514[2007]; Pagano v [*2]Kingsbury, 182 AD2d 268 [1992]).The November 20, 2007, report by Dr. Rose was insufficient to raise a triable issue of fact sinceDr. Rose did not perform any range of motion testing at that time (see Fiorillo v Arriaza, 52 AD3d465, 466 [2008]; Sharma vDiaz, 48 AD3d 442, 443 [2008]). The medical reports of Dr. Allen Rothpearl, althoughaffirmed, established only that as of March and April 2005, Aurora had disc bulges in her lumbarspine and a disc bulge and protrusion in her cervical spine, and that as of March, April, and May2005, the plaintiff Sirsa Ponciano had a disc protrusion in her thoracic spine, and disc bulges inher cervical spine and lumbar spine. The existence of a herniated or bulging disc, however, is notsufficient to raise a triable issue of fact as to the existence of a serious injury without objectiveevidence of the extent and duration of the physical limitations allegedly resulting from the discinjury (see Sealy v Riteway-1, Inc.,54 AD3d 1018 [2008]; Kilakos vMascera, 53 AD3d 527 [2008]; Cerisier v Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694[2006]; Kearse v New York City Tr.Auth., 16 AD3d 45, 49 [2005]). The affidavits of the respective plaintiffs wereinsufficient to satisfy that requirement (see Rabolt v Park, 50 AD3d 995, 996 [2008]; Young Soo Lee v Troia, 41 AD3d469, 470 [2007]; Nannarone vOtt, 41 AD3d 441, 442 [2007]).
Furthermore, neither the plaintiffs nor Dr. Rose explained the gap of more than 2½years between his initial treatment of them on March 21, 2005, and the more recent examinationsby him on November 20, 2007 (seePommells v Perez, 4 NY3d 566, 574 [2005]; Strok v Chez, 57 AD3d 887 [2008]; Sapienza v Ruggiero, 57 AD3d643 [2008]; cf. Domanas vDelgado Travel Agency, Inc., 56 AD3d 717 [2008]).
Finally, the plaintiffs failed to submit competent medical evidence that the injuries theyallegedly sustained as a result of the accident rendered them unable to perform substantially allof their daily activities for not less than 90 days of the first 180 days thereafter (see Rabolt vPark, 50 AD3d at 996; Roman vFast Lane Car Serv., Inc., 46 AD3d 535, 536 [2007]; Sainte-Aime v Ho, 274AD2d 569 [2000]). Spolzino, J.P., Ritter, Covello, McCarthy and Belen, JJ., concur.