| Ranford v Tim's Tree & Lawn Serv., Inc. |
| 2010 NY Slip Op 02531 [71 AD3d 973] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Frederick Ranford, Respondent, v Tim's Tree and LawnService, Inc., et al., Appellants. |
—[*1] Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Farber of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Tanenbaum, J.), dated August 10, 2009, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
Contrary to the determination of the Supreme Court, the defendants met their prima facieburden 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]). Theplaintiff's deposition testimony, submitted by the defendants, that the plaintiff missed no timefrom work as a result of the subject accident, established that his alleged injuries did not preventhim from performing substantially all of the material acts constituting his customary dailyactivities during at least 90 of the first 180 days following the accident (see Richards vTyson, 64 AD3d 760, 761 [2009]). Furthermore, the medical evidence relied on by thedefendants established that he did not sustain a serious injury to his cervical or lumbar spineunder the permanent consequential limitation of use and/or significant limitation of usecategories of Insurance Law § 5102 (d) as a result of the subject accident. The defendantssubmitted the affirmed report of their examining orthopedist, who concluded, based on objectiverange of motion tests, that the plaintiff had full range of motion in his cervical and lumbar spines(see Shevardenidze v Vaiana, 60 AD3d 660 [2009]).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether he sustained aserious injury as a result of the subject accident. Initially, the medical reports of the plaintiff'streating physician, submitted by the plaintiff, were unaffirmed and, thus, insufficient to raise atriable issue of fact (see Grasso v Angerami, 79 NY2d 813, 814 [1991]; Mora vRiddick, 69 AD3d 591 [2010]; Patterson v NY Alarm Response Corp., 45 AD3d 656[2007]; Nociforo v Penna, 42 AD3d 514, 515 [2007]). Furthermore, although theplaintiff submitted affirmations from certain radiologists, with annexed magnetic resonanceimaging reports, [*2]those affirmations merely revealed theexistence of herniated or bulging discs in his cervical and lumbar spines, and the mere existenceof a herniated or bulging disc is not evidence of a serious injury in the absence of objectiveevidence of the alleged physical limitations resulting from the disc injury, as well as its duration(see Bleszcz v Hiscock, 69 AD3d 890, 891 [2010]; Chanda v Varughese, 67AD3d 947, 947-948 [2009]; Niles v Lam Pakie Ho, 61 AD3d 657, 659 [2009]; Sealyv Riteway-1, Inc., 54 AD3d 1018, 1019 [2008]; Kearse v New York City Tr. Auth.,16 AD3d 45, 49 [2005]). Accordingly, the Supreme Court should have granted the defendants'motion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident. Fisher, J.P., Covello, Balkin, Leventhal and Lott, JJ., concur.