| Niles v Lam Pakie Ho |
| 2009 NY Slip Op 02764 [61 AD3d 657] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Mirmode Garraud Niles, Respondent, v Lam Pakie Ho etal., Defendants, and Jacob Express Cab, Appellant. |
—[*1] Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Jacob Express Cabappeals from an order of the Supreme Court, Kings County (Schack, J.), dated June 6, 2008,which denied its motion for summary judgment dismissing the complaint insofar as assertedagainst it on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantJacob Express Cab for summary judgment dismissing the complaint insofar as asserted against itis granted.
The appellant met its prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a consequence of thesubject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raisea triable issue of fact as to whether she sustained a serious injury to her left knee, cervical spine,or lumbar spine, under the "permanent consequential limitation of use" and/or the "significantlimitation of use" categories of Insurance Law § 5102 (d). The reports and recordssubmitted by the plaintiff from AR Medical and Apex Chiropractic were without any probativevalue since they were unsworn or unaffirmed (see Grasso v Angerami, 79 NY2d 813[1991]; Luna v Mann, 58 AD3d699 [2009]; Uribe-Zapata vCapallan, 54 AD3d 936 [2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747[2007]; Nociforo v Penna, 42 AD3d514 [2007]; Pagano v Kingsbury, 182 AD2d 268 [1992]).[*2]
The affirmed medical report of Dr. Harshad Bhatt did notraise a triable issue of fact as to whether the plaintiff sustained a serious injury to her left knee asa result of the subject accident. Dr. Bhatt examined the plaintiff on September 1, 2006, 1½years after the subject accident. The plaintiff failed to proffer any admissible objective medicalevidence revealing the existence of significant range-of-motion limitations in her left knee thatwere contemporaneous with the subject accident (see Washington v Mendoza, 57 AD3d 972 [2008]; Leeber v Ward, 55 AD3d 563[2008]; Ferraro v Ridge Car Serv.,49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]). Moreover, theplaintiff failed to proffer any objective medical evidence that showed that her left knee was thesubject of a recent examination (seeDiaz v Lopresti, 57 AD3d 832 [2008]; Landicho v Rincon, 53 AD3d 568, 569 [2008]; Cornelius v Cintas Corp., 50 AD3d1085 [2008]; Young Hwan Park vOrellana, 49 AD3d 721 [2008]; Amato v Fast Repair Inc., 42 AD3d 477 [2007]). While themagnetic resonance imaging (hereinafter MRI) report referable to the plaintiff's left knee datedMay 16, 2005 revealed, inter alia, a tear of the medial and lateral menisci, the mere existence ofa tear in a tendon is not evidence of a serious injury in the absence of objective evidence of theextent of the alleged physical limitations resulting from the injury and its duration (see Washington v Mendoza, 57 AD3d972 [2008]; Cornelius v Cintas Corp., 50 AD3d at 1087; Shvartsman v Vildman, 47 AD3d700 [2008]; Tobias v Chupenko,41 AD3d 583 [2007]).
Likewise, the submissions of Dr. Aric Hausknecht were insufficient to raise a triable issue offact. These submissions noted, among other things, range-of-motion findings with respect to theplaintiff's cervical and lumbar spine as of February 19, 2008. While Dr. Hausknecht noted theexistence of recent significant limitations in the plaintiff's lumbar and cervical ranges of motion,neither he nor the plaintiff proffered admissible objective medical evidence revealing theexistence of significant limitations in the plaintiff's cervical and lumbar spine that werecontemporaneous with the subject accident (see Washington v Mendoza, 57 AD3d 972 [2008]; Leeber v Ward, 55 AD3d 563[2008]; Ferraro v Ridge Car Serv.,49 AD3d 498 [2008]; D'Onofrio vFloton, Inc., 45 AD3d 525 [2007]).
The MRI reports of the plaintiff's cervical and lumbar spine merely revealed evidence that asof May 16, 2005 the plaintiff had disc herniations at C4-5 and C5-6, as well as disc bulges atC3-4 and L4-5. The mere existence of a herniated or bulging disc is not evidence of a seriousinjury in the absence of objective evidence of the extent of the alleged physical limitationsresulting from the disc injury and its duration (see Luna v Mann, 58 AD3d 699 [2009]; Sealy v Riteway-1, Inc., 54 AD3d1018 [2008]; Kilakos v Mascera,53 AD3d 527 [2008]; Cerisierv Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694 [2006]; Kearse v New York City Tr. Auth., 16AD3d 45, 49 [2005]). The affidavit of the plaintiff was insufficient to meet this requirement(see Luna v Mann, 58 AD3d699 [2009]). Rivera, J.P., Dillon, Miller, Balkin and Leventhal, JJ., concur.