| Casco v Cocchiola |
| 2009 NY Slip Op 03685 [62 AD3d 640] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Manuel Casco, Appellant, v Stella Cocchiola,Respondent. |
—[*1] Stewart H. Friedman, Lake Success, N.Y. (Michael Dantuono of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), datedMarch 3, 2008, as granted that branch of the defendant's motion which was for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court correctly determined that the defendant met her prima facie burden ofshowing that the plaintiff did not sustain a serious injury 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, 79 NY2d 955, 956-957 [1992]). The limitationnoted by the defendant's examining orthopedic surgeon concerning the plaintiff's lumbar flexionwas insignificant in nature.
In opposition, the plaintiff failed to raise a triable issue of fact. The vast majority of thesubmissions by the plaintiff's treating chiropractor Christopher Skurka were without anyprobative value since they were not presented in affidavit form, or otherwise subscribed before anotary (see Kunz v Gleeson, 9AD3d 480 [2004]; Santoro v Daniel, 276 AD2d 478 [2000]; Doumanis v Conzo,265 AD2d 296 [1999]). Furthermore, neither the plaintiff nor Skurka adequately explainedthe essential cessation of [*2]the plaintiff's treatment after sevenmonths of physical therapy (seePommells v Perez, 4 NY3d 566, 574 [2005]). In this respect, the plaintiff admittedduring his deposition testimony that he stopped treatment after seven months because he feltbetter (see Abreu v Bushwick Bldg.Prods. & Supplies, LLC, 43 AD3d 1091 [2007]). The only other medical submissionsoffered by the plaintiff in opposition to the defendant's motion were the affirmed magneticresonance imaging reports referable to the cervical and lumbar regions of his spine, whichrevealed the existence of a disc protrusion at C3-4 and a disc herniation at L5-S1. The mereexistence 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 plaintiff's remaining contentions are without merit. Skelos, J.P., Florio, Balkin, Belenand Austin, JJ., concur.