| Bleszcz v Hiscock |
| 2010 NY Slip Op 00639 [69 AD3d 890] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Mary Bleszcz, Respondent, v Tracy Hiscock,Appellant. |
—[*1] Bergman, Bergman, Goldberg & Lamonsoff, LLP, Mineola, N.Y. (Allen Goldberg ofcounsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals froman order of the Supreme Court, Nassau County (Spinola, J.), dated May 13, 2009, which deniedher motion for summary judgment dismissing the complaint on the ground that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The defendant met her 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 vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact.
The plaintiff's hospital records were uncertified and therefore failed to raise a triable issue offact (see Singh v Mohamed, 54AD3d 933 [2008]; Mejia vDeRose, 35 AD3d 407 [2006]). The affirmations of Dr. Ernesto Capulong, one of theplaintiff's treating physicians, were also insufficient to raise a triable issue of fact. While Dr.Capulong noted significant limitations in the range of motion of the plaintiff's lumbar spine on arecent examination of her, neither he nor the plaintiff proffered competent medical evidence thatrevealed the existence of significant limitations in her lumbar spine that were contemporaneouswith the subject accident (see Taylor vFlaherty, 65 AD3d 1328 [2009]; Fung v Uddin, 60 AD3d 992 [2009]; Gould v Ombrellino, 57 AD3d608 [2008]; Kuchero vTabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]). Thus, theplaintiff did not raise a triable issue of fact as to whether she sustained a serious injury under thepermanent consequential limitation of use or the significant limitation of use category ofInsurance Law § 5102 (d) (seeTaylor v Flaherty, 65 AD3d 1328 [2009]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]). The records ofDr. Joe Rufrano, of Southside Chiropractic, and those of SECO Physical Therapy, were notcontemporaneous with the subject accident.[*2]
The affirmation of Dr. Jeffrey Drucker, with an annexedmagnetic resonance imaging report, merely revealed the existence of herniated and bulging discsin the plaintiff's lumbar spine. The mere existence of a herniated or bulging disc is not evidenceof a serious injury in the absence of objective evidence of the extent of the alleged physicallimitations resulting from the disc injury, as well as its duration (see Chanda v Varughese, 67 AD3d947 [2009]; Niles v Lam PakieHo, 61 AD3d 657 [2009]; Sealy v Riteway-1, Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527[2008]; Kearse v New York City Tr.Auth., 16 AD3d 45, 49 [2005]). The plaintiff's affidavit was insufficient to raise atriable issue of fact (see Rabolt vPark, 50 AD3d 995 [2008]; Young Soo Lee v Troia, 41 AD3d 469 [2007]; Nannarone v Ott, 41 AD3d 441[2007]).
Finally, the plaintiff failed to submit competent medical evidence that the injuries allegedlysustained by her in the subject accident rendered her unable to perform substantially all of herusual and customary daily activities for not less than 90 days of the first 180 days subsequent tothe subject accident (see Roman v FastLane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569[2000]). In this regard, the plaintiff admitted in her deposition testimony that she missed onlyone day from work as a result of the subject accident. Rivera, J.P., Covello, Angiolillo,Leventhal and Roman, JJ., concur.