| Jules v Calderon |
| 2009 NY Slip Op 04201 [62 AD3d 958] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Garry R. Jules et al., Appellants, v Maria Calderon,Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Nassau County (Palmieri, J.), entered February 15, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint insofar as asserted by theplaintiff Garry R. Jules on the ground that Garry R. Jules did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d).
Ordered that the appeal by the plaintiff Frantzi Jules is dismissed, without costs ordisbursements, as that plaintiff is not aggrieved by the order appealed from (see CPLR5511); and it is further,
Ordered that the order is affirmed on the appeal by the plaintiff Garry R. Jules, with costs.
The defendant met her prima facie burden of showing that the plaintiff Garry R. Jules(hereinafter 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 [1992]; see also Kearse v New York City Tr.Auth., 16 AD3d 45, 49-50 [2005]). In opposition, the plaintiff failed to raise a triableissue of fact.
As to the plaintiff's left knee, while he submitted medical evidence that a recent examinationrevealed limitations therein, he failed to proffer any objective medical evidence of the existenceof a significant limitation in his left knee that was contemporaneous with the subject accident (see Garcia v Lopez, 59 AD3d593, 594 [2009]; Leeber vWard, 55 AD3d 563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d525 [2007]).
As to the plaintiff's lumbar and cervical spines, the submissions of Dr. Jerry A. Lubliner andDr. Theodore Leslie Dantes revealed significant limitations in the lumbar and cervical regions ofhis spine [*2]both contemporaneously with the subject accidentand more recently. However, neither expert addressed the fact that the plaintiff was involved in aprior accident in 2003, as well as a subsequent accident in 2005, in which he injured his neck andback. The failure to address these prior and subsequent accidents and injuries renderedspeculative the conclusions of those experts that the injuries and limitations they noted in theplaintiff's cervical and lumbar regions were caused by the subject accident (see Joseph v A & H Livery, 58 AD3d688 [2009]; Sapienza vRuggiero, 57 AD3d 643 [2008]; Zinger v Zylberberg, 35 AD3d 851 [2006]; Baksh v Shabi, 32 AD3d 525[2006]; see also Penaloza v Chavez,48 AD3d 654 [2008]; Vidor vDavila, 37 AD3d 826 [2007]).
The affirmed magnetic resonance imaging report of the plaintiff's cervical spine, dated June14, 2004, merely revealed the existence of a herniated disc at C5-6. The mere existence of aherniated disc is not evidence of a serious injury in the absence of objective evidence of theextent of the alleged physical limitations resulting from the disc injury and its duration (see Sealy v Riteway-1, Inc., 54 AD3d1018 [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 [2005]). The plaintiff's affidavit was insufficient to meet thisrequirement (see Ferber vMadorran, 60 AD3d 725 [2009]; Ponciano v Schaefer, 59 AD3d 605 [2009]; Luna v Mann, 58 AD3d 699[2009]).
The plaintiff failed to submit competent medical evidence that the injuries he allegedlysustained in the subject accident rendered him unable to perform substantially all of his usualand customary daily activities for not less than 90 days of the first 180 days subsequent to thesubject accident (see Roman v FastLane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569[2000]). Rivera, J.P., Dillon, Covello, Eng and Hall, JJ., concur. [See 19 Misc 3d1111(A), 2008 NY Slip Op 50640(U).]