| Chanda v Varughese |
| 2009 NY Slip Op 08773 [67 AD3d 947] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Manju Chanda, Appellant, v Kalathil Varughese,Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe 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 March 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 met his prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (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 principallyrelied upon the affidavit of her treating chiropractor, and while that chiropractor noted thereinsignificant limitations in the ranges of motion of the cervical and thoracolumbar regions of theplaintiff's spine, which were based on his contemporaneous and recent examinations of theplaintiff, he failed to acknowledge that the plaintiff previously injured the cervical and lumbarregions of her spine in a prior 2004 accident. That failure rendered speculative his conclusionthat the injuries and limitations observed by him were the result of the subject accident (see Joseph v A & H Livery, 58 AD3d688 [2009]; Penaloza v Chavez,48 AD3d 654 [2008]; Zinger vZylberberg, 35 AD3d 851, 852 [2006]; Tudisco v James, 28 AD3d 536 [2006]; Bennett v Genas, 27 AD3d 601[2006]; Allyn v Hanley, 2 AD3d470 [2003]).
The plaintiff's affirmed magnetic resonance imaging reports merely showed that, as ofFebruary and March 2006, the plaintiff had evidence of bulging discs at L2-3, L3-4, and L4-5, aswell as herniated discs at L3-4, L4-5, L5-S1, C4-5, and C5-6. The mere existence of a herniatedor 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, as well as its duration (see Niles v Lam Pakie Ho, 61 AD3d657 [2009]; Sealy v Riteway-1,Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527 [2008]; [*2]Cerisierv Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694 [2006]; Kearse v New York City Tr. Auth., 16AD3d 45, 49 [2005]).
The plaintiff's medical reports from North Shore University Hospital were unaffirmed andthus insufficient to raise a triable issue of fact (see Grasso v Angerami, 79 NY2d 813[1991]; Sutton v Yener, 65 AD3d625 [2009]; McNeil v New YorkCity Tr. Auth., 60 AD3d 1018 [2009]; Sapienza v Ruggiero, 57 AD3d 643 [2008]). Rivera, J.P., Covello,Angiolillo, Leventhal and Roman, JJ., concur.