| Knox v Lennihan |
| 2009 NY Slip Op 06238 [65 AD3d 615] |
| August 18, 2009 |
| Appellate Division, Second Department |
| Donna A. Knox, Appellant, v Lori A. Lennihan,Respondent. |
—[*1] Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Adams, J.), dated February 17, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant established her prima facie entitlement to judgment as a matter of law byshowing 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]). In opposition,the plaintiff failed to raise a triable issue of fact. The plaintiff's essential argument on appeal isthat her submissions in opposition were sufficient to raise a triable issue of fact as to whether shesustained a serious injury to her cervical spine under the permanent consequential limitation ofuse and the significant limitation of use categories of Insurance Law § 5102 (d). Theplaintiff, in opposition to the defendant's motion, principally relied on the affirmations of Dr.Bradley J. Cohen and Dr. Bruce R. Ross. However, those affirmations failed to raise a triableissue of fact as to whether the plaintiff sustained either a permanent consequential limitation ofuse or a significant limitation of use of her cervical spine as a result of the subject accidentbecause neither affirmation contained any competent medical evidence which revealed theexistence of range-of-motion limitations in the plaintiff's cervical spine that werecontemporaneous with the subject accident (see Niles v Lam Pakie Ho, 61 AD3d 657, 658 [2009]; Garcia v Lopez, 59 AD3d 593[2009]; Leeber v Ward, 55 AD3d563 [2008]; Ferraro v Ridge CarServ., 49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]).
The affirmed magnetic resonance imaging report of Dr. Elizabeth P. Maltin, the plaintiff'sradiologist, merely established that as of June 13, 2005, the plaintiff showed evidence ofdegenerative cervical spondylosis at C5-6 and C6-7, with a herniated disc at C6-7. Initially, themere existence of a herniated disc is not evidence of a serious injury in the absence of objectiveevidence [*2]of the extent of the alleged physical limitationsresulting from the disc injury and its duration (see Casco v Cocchiola, 62 AD3d 640 [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, 49-50 [2005]). Furthermore, Dr. Maltin never set forth her opinion on the causeof findings she made in her report, especially her finding of a disc herniation at C6-7 (see Collins v Stone, 8 AD3d 321,322 [2004]).
The plaintiff also failed to submit any competent medical evidence that the injuries sheallegedly sustained in the subject accident rendered her unable to perform substantially all of herdaily activities for not less than 90 days of the first 180 days subsequent to the subject accident(see Roman v Fast Lane Car Serv., Inc.,46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). She admittedin her deposition testimony that she returned to work full time on July 25, 2005, approximately1½ months after the accident (seeKin Chong Ku v Baldwin-Bell, 61 AD3d 938 [2009]; Camacho v Dwelle, 54 AD3d 706[2008]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.