| Su Gil Yun v Barber |
| 2009 NY Slip Op 05535 [63 AD3d 1140] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Su Gil Yun et al., Appellants, v Bruce Barber et al.,Respondents. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Christopher T. Vetro of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Queens County (Agate, J.), entered April 16, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that neither ofthem sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against them by the plaintiff Su Gil Yun on the ground that he did not sustaina serious injury under the significant limitation of use and/or permanent consequential limitationof use categories of Insurance Law § 5102 (d), and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed, with costs to thedefendants payable by the plaintiff Yi Ja Yun.
The defendants met their 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 to the motion, the plaintiff Su Gil Yun raised a triable issue of fact through theaffidavit of his treating chiropractor Dr. Duk Soon Park as to whether he sustained a seriousinjury to, among other things, the cervical and lumbar regions of his spine, under the significantlimitation of use and/or permanent consequential limitation of use categories of Insurance Law§ 5102 (d) as a result of the subject accident (see Pearson v Guapisaca, 61 AD3d833 [2009]; Williams v Clark, 54 AD3d 942 [2008]; Casey v Mas Transp., Inc.,48 AD3d 610 [2008]; Acosta v Rubin, 2 AD3d 657 [2003]). Dr. Park stated that hehad conducted both contemporaneous and recent examinations of Su Gil Yun, and had reviewedhis magnetic resonance imaging (hereinafter MRI) reports, which showed, inter alia, herniateddiscs at C5-6, C6-7, and L4-5 and bulging discs at L1-2 and L2-3. Dr. Park concluded that theinjuries to the cervical and lumbar regions of Su Gil Yun's spine and observed range of motionlimitations were permanent and causally related to the subject accident. Dr. Park furtherconcluded that Su Gil Yun's injuries amounted to a permanent consequential limitation of use ofthe cervical and lumbar regions of his spine.[*2]
In contrast, the plaintiff Yi Ja Yun failed to raise a triableissue of fact as to whether she sustained a serious injury to her lumbar spine and left knee, underthe significant limitation of use and/or permanent consequential limitation of use categories ofInsurance Law § 5102 (d) as a result of the subject accident. Preliminarily, because Yi JaYun never alleged any cervical spine injuries in her bill of particulars, but only alleged injuriesto her lumbar spine and left knee, the findings with respect to Yi Ja Yun's cervical spine in bothDr. Park's affidavit and an affirmed medical report by Dr. Sawey Harhash were not consideredby this Court, and should not have been considered by the Supreme Court (see Felix vWildred, 54 AD3d 891 [2008]; Ifrach v Neiman, 306 AD2d 380 [2003]). Further,while Dr. Park set forth significant range of motion limitations concerning Yi Ja Yun's lumbarspine, and Dr. Harhash set forth significant range of motion limitations concerning Yi Ja Yun'slumbar spine and left knee, which they both concluded resulted from the subject accident, theirconclusions were rendered speculative in light of the fact that they failed to acknowledge that YiJa Yun was involved in a prior accident in 2001 (see Silla v Mohammad, 52 AD3d 681[2008]; Cornelius v Cintas Corp., 50 AD3d 1085, 1086 [2008]; Wright v Rodriguez,49 AD3d 532 [2008]; Moore v Sarwar, 29 AD3d 752 [2006]). Moreover, since Dr.Park failed to set forth in his affidavit any findings regarding the results of his testing on Yi JaYun's left knee, his conclusion that she sustained a significant limitation of use and/or permanentconsequential limitation of use of her left knee as a result of the subject accident was withoutprobative value (see Nociforo v Penna, 42 AD3d 514 [2007]).
The MRI reports of Dr. Mark Frielich also failed to raise a triable issue of fact as to Yi JaYun, as they merely showed the existence of herniated and bulging discs, a tear of the medialmeniscus of the left knee, and a partial tear of the fibular collateral ligament, which are notevidence of a serious injury in the absence of objective evidence of the extent of the allegedphysical limitations resulting from the injury and its duration (see Carabello v Kim,— AD3d —, 2009 NY Slip Op 05279 [2009]; Magid v Lincoln Servs. Corp.,60 AD3d 1008 [2009]; Washington v Mendoza, 57 AD3d 972 [2008]; Corneliusv Cintas Corp., 50 AD3d at 1087; Shvartsman v Vildman, 47 AD3d 700 [2008]).
The plaintiffs' remaining submissions did not constitute admissible evidence since they wereunsworn (see Grasso v Angerami, 79 NY2d 813 [1991]; McNeil v New York CityTr. Auth., 60 AD3d 1018 [2009]; Sapienza v Ruggiero, 57 AD3d 643, 644 [2008]).
Finally, both plaintiffs failed to submit competent medical evidence that the injuries theyallegedly sustained in the subject accident rendered them unable to perform substantially all oftheir usual and customary daily activities for not less than 90 of the first 180 days subsequent tothe subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007];Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]). Skelos, J.P., Florio, Balkin, Belen andAustin, JJ., concur.