| Stevens v Sampson |
| 2010 NY Slip Op 03105 [72 AD3d 793] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Nicole Stevens, Appellant, v Alfonso Sampson,Respondent. |
—[*1] Robert P. Tusa, Lake Success, N.Y. (Sweetbaum & Sweetbaum [Marshall D. Sweetbaum] ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated April 29, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court properly concluded that the defendant met his prima facie burden 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, the plaintiff failed to raise a triable issue of fact. Initially, the medical report ofDr. Serge Delaleu was insufficient to raise a triable issue of fact since it was unaffirmed (see Haber v Ullah, 69 AD3d 796[2010]; Patterson v NY AlarmResponse Corp., 45 AD3d 656 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]; see also Grasso vAngerami, 79 NY2d 813 [1991]; Pagano v Kingsbury, 182 AD2d 268 [1992]). Theaffirmed medical reports of Dr. Aric Hausknecht, the plaintiff's treating neurologist, were alsoinsufficient to raise a triable issue of fact. While Dr. Hausknecht noted significant limitations inthe range of motion of the plaintiff's cervical spine on recent examinations, neither he nor theplaintiff proffered competent medical evidence that revealed the existence of significantlimitations in the cervical region of her spine that were contemporaneous with the subjectaccident. Thus, the plaintiff did not raise a triable issue of fact as to whether she sustained aserious injury under the permanent consequential limitation of use or the significant limitation ofuse category of Insurance Law § 5102 (d) (see Bleszcz v Hiscock, 69 AD3d 890 [2010]; Taylor v Flaherty, 65 AD3d 1328[2009]; Ferraro v Ridge Car Serv.,49 AD3d 498 [2008]).
The affirmation of Dr. Ayoob Khodadadi, with annexed magnetic resonance imagingreports, merely revealed the existence of herniated discs in the cervical region of the plaintiff'sspine and [*2]a bulging disc in the lumbar region of the spine.The mere existence of a herniated or bulging disc is not evidence of a serious injury in theabsence of objective evidence of the extent of the alleged physical limitations resulting from thedisc injury, as well as its duration (seeBleszcz v Hiscock, 69 AD3d 890 [2010]; Chanda v Varughese, 67 AD3d 947 [2009]; Niles v Lam Pakie Ho, 61 AD3d657 [2009]; Sealy v Riteway-1,Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527 [2008]; Kearse v New York City Tr. Auth., 16AD3d 45, 49 [2005]). The plaintiff's affidavit was insufficient to raise a triable issue of fact(see Hargrove v New York City Tr.Auth., 49 AD3d 692 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]; Tobias v Chupenko, 41 AD3d583, 584 [2007]).
The plaintiff's admissible medical submissions were insufficient to establish that shesustained a medically determined injury of a nonpermanent nature which prevented her fromperforming her usual and customary activities for 90 of the 180 days following the subjectaccident (see Hargrove v New York City Tr. Auth., 49 AD3d at 693; Sainte-Aime vHo, 274 AD2d 569, 570 [2000]). Rivera, J.P., Florio, Miller, Chambers and Roman, JJ.,concur.