| Casimir v Bailey |
| 2010 NY Slip Op 01612 [70 AD3d 994] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Jean Casimir, Respondent, v Trevor Bailey,Appellant. |
—[*1] Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Starkey, J.), entered July 13, 2009, which denied his motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious 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 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, 350-351 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact.
The plaintiff's medical experts, Dr. Raj Tolat and Dr. Andrew Davy, failed to address thefindings of the defendant's radiologist, who concluded that the bulging and herniated discsobserved in the plaintiff's cervical and lumbar spine magnetic resonance imaging films weredegenerative in nature and unrelated to the subject accident. Thus, the conclusions of theplaintiff's experts that the injuries and limitations noted during their respective examinationswere the result of the subject accident were speculative (see Nicholson v Allen, 62 AD3d766 [2009]; Ferebee v Sheika, 58 AD3d 675, 676 [2009]; Johnson v Berger, 56AD3d 725 [2008]; Ciordia v Luchian, 54 AD3d 708 [2008]).
Furthermore, the affirmed magnetic resonance imaging reports of Dr. Robert Diamond, andthe EMG report of Dr. Tolat, merely revealed the existence of disc bulges and disc herniations inthe plaintiff's cervical and lumbar spine and radiculopathy. The mere existence of a herniated orbulging disc or radiculopathy is not evidence of a serious injury in the absence of objectiveevidence of the extent of the alleged physical limitations resulting from the injury and its [*2]duration (see Rivera v Bushwick Ridgewood Props., Inc.,63 AD3d 712 [2009]; Niles v Lam Pakie Ho, 61 AD3d 657 [2009]; Pompey vCarney, 59 AD3d 416 [2009]). Such evidence was clearly lacking in opposition to thedefendant's motion. The deposition testimony of the plaintiff was insufficient to raise a triableissue of fact as well (see Washington v Mendoza, 57 AD3d 972 [2008];Luizzi-Schwenk v Singh, 58 AD3d 811, 812 [2009]; Sealy v Riteway-1, Inc., 54AD3d 1018 [2008]).
Lastly, the plaintiff failed to submit competent medical evidence that the injuries heallegedly sustained in the subject accident rendered him unable to perform substantially all of hisdaily activities for not less than 90 days of the first 180 days subsequent to the subject accident(see Washington v Mendoza, 57 AD3d at 974; Rabolt v Park, 50 AD3d 995[2008]; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime vHo, 274 AD2d 569 [2000]). Rivera, J.P., Florio, Dickerson, Belen and Roman, JJ., concur.