| Ferber v Madorran |
| 2009 NY Slip Op 01772 [60 AD3d 725] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Janna Ferber, Respondent, v Robert Madorran et al.,Defendants, and Joseph Rawas et al., Appellants. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for appellants Sweet Irene Transportation Co., Inc., and Afridi J. Kausar. Mallilo & Grossman, Brooklyn, N.Y. (Beth J. Girsch of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Joseph Rawas appeals,as limited by his brief, and the defendants Sweet Irene Transportation Co., Inc., and Afridi J.Kausar separately appeal, from so much of an order of the Supreme Court, Kings County(Jacobson, J.), dated April 8, 2008, as denied those branches of their respective motions whichwere for summary judgment dismissing so much of the plaintiff's complaint as sought to recoverdamages based on alleged serious injuries to her cervical spine, head, and right knee on theground that she did not sustain such serious injuries within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is reversed insofar as appealed from, with one bill of costs payable bythe plaintiff to the appellants appearing separately and filing separate briefs, and those branchesof the motion of the defendant Joseph Rawas, and the separate motion of the defendants SweetIrene Transportation Co., Inc., and Afridi J. Kausar, which were for summary judgmentdismissing so much of the plaintiff's complaint as sought to recover damages based on allegedserious injuries to her cervical spine, head, and right knee are granted.
The appellants met their prima facie burdens of establishing that the plaintiff did not sustaina serious 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 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the Supreme Court erred in findingthat the plaintiff raised triable issues of fact as to whether she sustained a serious injury to hercervical spine, head (in the form of headaches), or right knee within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident. In opposing the motions, the plaintiffprincipally relied upon the affirmation of her treating doctor, Dr. Leo E. Batash. His affirmationwas without probative value since he clearly relied on unsworn reports of others in reaching hisconclusions (see Sorto v Morales,55 AD3d 718 [2008]; Malave vBasikov, 45 AD3d 539 [2007]; Furrs v Griffith, 43 AD3d 389 [2007]; Friedman v U-HaulTruck Rental, 216 AD2d 266, 267 [1995]).
The affirmed magnetic resonance imaging (hereinafter MRI) report of the plaintiff's cervicalspine merely established that the plaintiff had a bulging disc at C4-5 as of March 31, 2003. Themere existence of a herniated or bulging disc 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 (see Sealy v Riteway-1,Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527 [2008]; Cerisier v Thibiu, 29 AD3d 507[2006]; Bravo v Rehman, 28 AD3d694 [2006]; Kearse v New YorkCity Tr. Auth., 16 AD3d 45 [2005]). The affidavit of the plaintiff was insufficient tomeet that requirement (see Rabolt vPark, 50 AD3d 995 [2008]; Young Soo Lee v Troia, 41 AD3d 469 [2007]; Nannarone v Ott, 41 AD3d 441[2007]). It should further be noted that Dr. Howard Gelber, the radiologist who interpreted theMarch 2003 cervical spine MRI, failed to offer any opinion on the cause of the bulging disc henoted therein (see Collins v Stone,8 AD3d 321, 322 [2004]).
The plaintiff failed to submit competent medical evidence that the injuries she allegedlysustained 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]). Skelos,J.P., Santucci, Angiolillo, Dickerson and Chambers, JJ., concur.