| Keith v Duval |
| 2010 NY Slip Op 02754 [71 AD3d 1093] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Leora Keith, Appellant, v Lois Duval et al., Respondents,et al., Defendant. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacey R. Seldin ofcounsel), for respondent Lois Duval. Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for respondents AmadouMoussa and Diallo Abdouerahmane.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Velasquez, J.), entered March 25, 2009, which granted therespective motions of the defendants Lois Duval and Taxi and Limousine Commission, thedefendants Amadou Moussa and Diallo Abdouerahmane, and the defendants Saunor Feneleonand Katenka Blaise, for summary judgment dismissing the complaint insofar as asserted againsteach of them on the ground that she did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
The defendants met their respective prima facie burdens of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (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 as to whether she sustained a permanent consequential limitation of use of a bodyorgan or member and/or a significant limitation of use of a body function or system within themeaning of Insurance Law § 5102 (d). Initially, the plaintiff's hospital records and the finalnarrative report of Dr. Nitin Narkhede were insufficient to raise a triable issue of fact because thehospital records were uncertified (see Bleszcz v Hiscock, 69 AD3d 890 [2010];Singh v Mohamed, 54 AD3d 933 [2008]; Mejia v DeRose, 35 AD3d 407 [2006])and Narkhede's report was unaffirmed (see Grasso v Angerami, 79 NY2d 813 [1991];Mora v Riddick, 69 AD3d 591 [2010]; Patterson v NY Alarm Response Corp.,45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747 [2007]; Nociforo v Penna, 42AD3d 514 [2007]; Pagano v Kingsbury, 182 AD2d 268 [1992]).
The affirmed medical report of Dr. Gary Starkman, the plaintiff's examining neurologist,[*2]failed to raise a triable issue of fact as well. While this reportset forth significant limitations of the cervical and lumbar regions of the plaintiff's spine thatwere noted during a recent examination, neither the plaintiff nor Dr. Starkman profferedcompetent medical evidence that revealed the existence of significant limitations in those regionsof the spine that were contemporaneous with the subject accident (see Mensah v Badu,68 AD3d 945 [2009]; Taylor v Flaherty, 65 AD3d 1328 [2009]; Fung v Uddin,60 AD3d 992 [2009]; Gould v Ombrellino, 57 AD3d 608 [2008]; Kuchero vTabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498[2008]). While Narkhede's initial medical report dated March 28, 2006, was affirmed, and noted"decreased" range of motion in the cervical spine, Narkhede failed to set forth the objectivemedical testing done to arrive at that conclusion (see Knopf v Sinetar, 69 AD3d 809[2010]; Spence v Mikelberg, 66 AD3d 765 [2009]; Sapienza v Ruggiero, 57AD3d 643 [2008]; Budhram v Ogunmoyin, 53 AD3d 640, 641 [2008]; Piperis vWan, 49 AD3d 840, 841 [2008]).
The plaintiff's remaining admissible medical submissions merely revealed evidence ofbulging discs in the lumbar and cervical regions of her spine, a herniated disc in the lumbarspine, and cervical radiculopathy. The mere existence of a herniated disc, a bulging disc, orradiculopathy is not evidence of a serious injury in the absence of objective evidence of theextent of the alleged physical limitations resulting from the injury and its duration (seeCasimir v Bailey, 70 AD3d 994 [2010]; 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]). Neither the plaintiff's affidavit nor her other submissionswere sufficient to raise a triable issue of fact as to whether these claimed injuries constitutedserious injuries within the meaning of Insurance Law § 5102 (d) (see Bleszcz vHiscock, 69 AD3d 890 [2010]; Rabolt v Park, 50 AD3d 995 [2008]). Fisher, J.P.,Covello, Balkin, Leventhal and Lott, JJ., concur.