| Mora v Riddick |
| 2010 NY Slip Op 00119 [69 AD3d 591] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Angel Mora, Appellant, v Barbara J. Riddick et al.,Respondents. |
—[*1] James Hiebler, Hempstead, N.Y. (Shayne, Dachs, Corker, Sauer & Dachs, LLP [Jonathan A.Dachs], of counsel), for respondent Barbara J. Riddick.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Adams, J.), dated September 15, 2008, which granted themotion of the defendant Barbara J. Riddick, and that branch of the cross motion of thedefendants County of Nassau and Daniel R. Clarke which were for summary judgmentdismissing the complaint insofar as asserted against each of them on the ground that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs payable to the defendant Barbara J. Riddick.
The Supreme Court properly determined that the defendants met their respective prima facieburdens of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inopposition, the plaintiff failed to raise a triable issue of fact. Initially, the medical reportssubmitted by Dr. Lauren Stimler-Levy, the plaintiff's treating physician, were unaffirmed and,thus, insufficient to raise a triable issue of fact (see Grasso v Angerami, 79 NY2d 813[1991]; Shaji v City of NewRochelle, 66 AD3d 760 [2009]; Maffei v Santiago, 63 AD3d 1011 [2009]; Niles v Lam Pakie Ho, 61 AD3d657 [2009]; Uribe-Zapata vCapallan, 54 AD3d 936 [2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747[2007]; Nociforo v Penna, 42 AD3d514 [2007]; Pagano v Kingsbury, 182 AD2d 268 [1992]). Additionally, while theplaintiff submitted medical evidence that he suffered from, inter alia, herniated and bulgingdiscs, as well as tendon tears, those findings are not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the injuries andtheir duration (see Ciancio v Nolan,65 AD3d 1273 [2009]; Magidv Lincoln Servs. Corp., 60 AD3d 1008, 1009 [2009]; Washington v Mendoza, 57 AD3d972 [2008]; Cornelius v CintasCorp., 50 AD3d 1085, 1087 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]).[*2]
The plaintiff also failed to set forth any competentmedical evidence to raise a triable issue of fact as to whether he sustained amedically-determined injury of a nonpermanent nature which prevented him from performing hisusual and customary daily activities for 90 of the 180 days following the subject accident(see Sainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Florio, Balkin, Belen andAustin, JJ., concur.