| Little v Locoh |
| 2010 NY Slip Op 02103 [71 AD3d 837] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Richaun Little, Appellant, v Fogan Locoh et al.,Respondents. |
—[*1] James Hiebler (Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A.Dachs], of counsel), for respondent Fogan Locoh. Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci ofcounsel), for respondent Gloria Moultrie.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Grays, J.), dated March 20, 2009, which granted thedefendants' separate motions for summary judgment dismissing the complaint insofar as assertedagainst each of them on the ground that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with one bill of costs.
The Supreme Court properly determined that the defendants met their prima facie burdens ofshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, theplaintiff failed to raise a triable issue of fact.
The ambulance call report, hospital records, the reports of Drs. S.K. Reddy and Paul S.Raphael, and the therapy notes which the plaintiff submitted in opposition to the defendants'motions were unaffirmed and/or uncertified. Therefore, those submissions were withoutprobative value and were insufficient to raise a triable issue of fact as to whether the plaintiffsustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Grassov Angerami, 79 NY2d 813 [1991]; Maffei v Santiago, 63 AD3d 1011, 1012 [2009]; Niles v Lam Pakie Ho, 61 AD3d657, 658 [2009]; Uribe-Zapata vCapallan, 54 AD3d 936, 937 [2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656, 656 [2007];Verette v Zia, 44 AD3d 747,748 [2007]; Nociforo v Penna, 42AD3d 514, 515 [2007]; Pagano v Kingsbury, 182 AD2d 268 [1992]).
The affirmation of Dr. Jay Simoncic, the plaintiff's examining physician, also failed to raisea triable issue of fact. While Dr. Simoncic noted significant limitations in the plaintiff's cervicalspine range of motion based on his recent examination of her on November 10, 2008, neither henor the plaintiff [*2]proffered competent medical evidence thatrevealed the existence of significant limitations in her spine range of motion that werecontemporaneous with the subject accident (see Sutton v Yener, 65 AD3d 625, 626 [2009]; Jules v Calderon, 62 AD3d 958,958 [2009]; Garcia v Lopez, 59AD3d 593, 594 [2009]; Leeber vWard, 55 AD3d 563, 563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498, 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d525, 525 [2007]).
The affirmed magnetic resonance imaging reports of Dr. Robert Solomon merely revealedthe existence of a tear of the anterior cruciate ligament in the plaintiff's right knee and variousbulging discs in her cervical spine. A tear in tendons, as well as a tear in a ligament, or a bulgingdisc is not evidence of a serious injury in the absence of objective evidence of the extent of thealleged physical limitations resulting from the injury and its duration (see Ciancio v Nolan, 65 AD3d1273, 1274 [2009]; Niles v Lam Pakie Ho, 61 AD3d at 658-659; Sealy v Riteway-1, Inc., 54 AD3d1018, 1019 [2008]; Kilakos vMascera, 53 AD3d 527, 528-529 [2008]; Cornelius v Cintas Corp., 50 AD3d 1085, 1087 [2008]). Suchevidence was clearly lacking in opposition to the defendants' motions here. The affidavit of theplaintiff was also insufficient to meet this requirement (see Luizzi-Schwenk v Singh, 58 AD3d 811, 812 [2009]; Sealyv Riteway-1, Inc., 54 AD3d at 1019).
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 Rabolt vPark, 50 AD3d 995, 996 [2008]; Sainte-Aime v Ho, 274 AD2d 569, 570[2000]).
Accordingly, the defendants' separate motions for summary judgment dismissing thecomplaint insofar as asserted against each of them were properly granted. Rivera, J.P., Florio,Dickerson, Belen and Roman, JJ., concur.