| Knopf v Sinetar |
| 2010 NY Slip Op 00480 [69 AD3d 809] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Margaret Knopf, Appellant, v Helen Sinetar,Respondent. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Nassau County (Diamond, J.), entered December 11, 2008, which grantedthe defendant's motion for summary judgment dismissing the complaint on the ground that shedid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) ajudgment of the same court entered January 28, 2009, which, upon the order, is in favor of thedefendant and against her dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court correctly determined that the defendant, in support of her motion forsummary judgment, met her prima facie burden by showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident, a determination with which the plaintiff does not take issue on appeal.
In opposition to that showing, however, and contrary to her contentions, the plaintiff failedto raise a triable issue of fact. On appeal, the plaintiff asserts that her submissions in oppositionto the defendant's motion were sufficient to raise a triable issue of fact as to whether shesustained a medically determined injury or impairment of a nonpermanent nature whichprevented her from performing substantially all of the material acts which constituted her usualand customary daily activities for not less than 90 days during the 180 days immediatelyfollowing the subject accident (hereinafter the 90/180 [*2]category). In support of that argument, the plaintiff principallyrelies on the affirmation of her treating neurologist, as well as her medical reports. Thosesubmissions failed to raise a triable issue of fact as to whether the plaintiff sustained a seriousinjury within the ambit of the 90/180 category. Initially, while the plaintiff's treating neurologiststated that she examined the plaintiff on January 5, 2007, and noted at that time that the plaintiffhad "restricted" range of motion in her neck, she failed to set forth any objective testing she didin order to reach that conclusion (seeSpence v Mikelberg, 66 AD3d 765 [2009]; Sapienza v Ruggiero, 57 AD3d 643 [2008]; Budhram v Ogunmoyin, 53 AD3d640, 641 [2008]; Piperis v Wan,49 AD3d 840, 841 [2008]). Furthermore, while the neurologist also noted that, upontesting on that date, the plaintiff had an "audible clicking" in her jaw, the neurologist failed toforth any quantified limitations concerning the plaintiff's jaw, nor did she set forth anyqualitative assessment of the plaintiff's jaw (see Toure v Avis Rent A Car Sys., 98 NY2d345, 350 [2002]; Giannini v Cruz,67 AD3d 638 [2009]; Taylor vFlaherty, 65 AD3d 1328 [2009]; Barnett v Smith, 64 AD3d 669, 671 [2009]; Shtesl v Kokoros, 56 AD3d 544,546 [2008]). The neurologist's affirmation and medical reports rely solely on the plaintiff'ssubjective complaints of pain (seeDantini v Cuffie, 59 AD3d 490 [2009]; Ranzie v Abdul-Massih, 28 AD3d 447 [2006]; Picott v Lewis, 26 AD3d 319[2006]), and her affirmation was clearly tailored to meet the statutory requirements (see Picott v Lewis, 26 AD3d 319[2006]; Marte v New York City Tr. Auth., 253 AD2d 519 [1998]). Indeed, the plaintiff'streating neurologist fails to show, via objective medical evidence, in either her affirmation or herreports, that the plaintiff was limited in any capacity.
The evidence contained in the magnetic resonance imaging report of the plaintiff's cervicalspine failed to raise a triable issue of fact, since the mere existence of a herniated or bulging discis not evidence of a serious injury in the absence of objective evidence of the extent of thealleged physical limitations resulting from the disc injury, as well as its duration (see Chanda v Varughese, 67 AD3d947 [2009]; Niles v Lam Pakie Ho,61 AD3d 657 [2009]; Sealy vRiteway-1, Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527 [2008]; Kearse v New York City Tr. Auth., 16AD3d 45, 49 [2005]). Such evidence was lacking in this case. Dillon, J.P., Miller, Eng, Halland Sgroi, JJ., concur.