| Sutton v Yener |
| 2009 NY Slip Op 06247 [65 AD3d 625] |
| August 18, 2009 |
| Appellate Division, Second Department |
| Dennis Sutton et al., Respondents, v Robert Lynn Yener etal., Appellants. |
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In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Schack, J.), dated November 21, 2008, which deniedtheir motion for summary judgment dismissing the complaint on the ground that neither theplaintiff Dennis Sutton nor the plaintiff Lacy Ann Small sustained a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The defendants met their prima facie burden of showing that the plaintiffs Dennis Sutton andLacy Ann Small (hereinafter together the injured plaintiffs) did not sustain serious injurieswithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]; see also Kearse v NewYork City Tr. Auth., 16 AD3d 45 [2005]). In opposition, the plaintiffs failed to raise atriable issue of fact. Initially, Dennis' hospital records, submitted by the plaintiffs, were not inadmissible form because they were unsworn (see McNeil v New York City Tr. Auth., 60 AD3d 1018 [2009]; Sapienza v Ruggiero, 57 AD3d643 [2008]; Choi Ping Wong vInnocent, 54 AD3d 384 [2008]).
The affirmed medical reports of the injured plaintiffs' treating physician, Dr. Jorge Rivero,failed to raise a triable issue of fact. While he noted range-of-motion limitations in the cervicaland lumbar regions of the injured plaintiffs' respective spines, neither he nor the plaintiffsproffered any competent objective medical evidence that revealed the existence ofrange-of-motion limitations in those areas that were contemporaneous with the subject accident(see Jules v Calderon, 62 AD3d958 [2009]; Garcia v Lopez, 59AD3d 593 [2009]; Leeber vWard, 55 AD3d 563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d525 [2007]).
While the plaintiffs properly relied upon the unsworn magnetic resonance imaging(hereinafter MRI) reports concerning the injured plaintiffs (see Thompson v Saunders, 57 AD3d 971 [2008]; Williams v Clark, 54 AD3d 942[2008]; Zarate v McDonald, 31AD3d 632 [2006]; Ayzen v Melendez, 299 AD2d 381 [2002]), those reports failedto raise a triable issue of fact on their own. The MRI reports merely revealed the existence ofbulging discs at L4-5, L5-S1, and C5-6 in Dennis's spine, and bulging discs [*2]at C5-6 and C6-7 in Lacy Ann's cervical spine. The mere existenceof a bulging 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 plaintiffs failed to supply such objective medicalevidence.
The plaintiffs failed to submit competent medical evidence demonstrating that the injuriesthe injured plaintiffs allegedly sustained in the subject accident rendered them unable to performsubstantially all of their usual and customary daily activities for not less than 90 days of the first180 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]). Mastro, J.P., Miller, Dickerson andChambers, JJ., concur.