| Lozusko v Miller |
| 2010 NY Slip Op 03291 [72 AD3d 908] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Isyslav Lozusko et al., Appellants, v Harriet Miller et al.,Respondents, et al., Defendants. |
—[*1] Callan, Koster, Brady & Brennan LLP, New York, N.Y. (Michael P. Kandler and Stephen J.Barrett of counsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appealfrom an order of the Supreme Court, Kings County (Velasquez, J.), dated March 29, 2009,which, in effect, granted the motion of the defendants Harriet Miller and Israel Miller forsummary judgment dismissing the complaint insofar as asserted against them on the ground thatthe plaintiff Isyslav Lozusko did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants Harriet Miller and Israel Miller (hereinafter together the Millers) established,prima facie, that the plaintiff Isyslav Lozusko (hereinafter the injured 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 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]).
In opposition to the Millers' showing, the plaintiffs failed to raise a triable issue of fact. Themedical reports of Dr. Y. George Krementsov, the initial report of Dr. Zina Turovsky, and theinjured plaintiff's physical therapy reports were unaffirmed, and the injured plaintiff's hospitalrecords were uncertified and, thus, failed to raise a triable issue of fact (see Grasso vAngerami, 79 NY2d 813 [1991]; Bleszcz v Hiscock, 69 AD3d 890 [2010]; Singh v Mohamed, 54 AD3d 933[2008]; Verette v Zia, 44 AD3d747 [2007]; Nociforo v Penna,42 AD3d 514 [2007]; Mejia vDeRose, 35 AD3d 407 [2006]).
Although the plaintiffs' reliance on unaffirmed reports of magnetic resonance imaging(hereinafter MRI) scans was not improper since the results of those MRI scans were set forth inthe affirmed medical report of the Millers' examining orthopedic surgeon (see Zarate v McDonald, 31 AD3d632 [2006]; Ayzen v Melendez, 299 AD2d 381 [2002]), those reports failed to raisea triable issue of fact, as they merely showed that, as of August 2003, the injured plaintiff hadsustained, among other things, disc herniations in his cervical spine, and a disc herniation anddisc bulges in his lumbar spine. The mere existence of those herniations and bulges, in theabsence of objective evidence as to the extent of the alleged physical limitations resulting fromthe injuries and their duration, are not evidence of [*2]seriousinjury (see Shvartsman v Vildman,47 AD3d 700 [2008]; Patterson vNY Alarm Response Corp., 45 AD3d 656 [2007]; Tobias v Chupenko, 41 AD3d 583 [2007]; Mejia v DeRose, 35 AD3d 407[2006]).
While the plaintiffs submitted competent medical evidence that recent medical examinationsrevealed significant range-of-motion limitations in the cervical and lumbar regions of the injuredplaintiff's spine, they failed to proffer competent medical evidence of the existence of significantlimitations in either spinal region that were contemporaneous with the subject accident (see Sutton v Yener, 65 AD3d 625,626 [2009]; Jules v Calderon, 62AD3d 958 [2009]; Garcia vLopez, 59 AD3d 593 [2009]).
The plaintiffs also failed to offer competent medical evidence that the injured plaintiffsustained a medically determined injury of a nonpermanent nature that prevented him, for 90 ofthe 180 days following the subject accident, from performing his usual and customary dailyactivities (see Rabolt v Park, 50AD3d 995 [2008]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).
Finally, the injured plaintiff's affidavit failed to raise a triable issue of fact as to whether hesustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Verette v Zia, 44 AD3d 747[2007]; Nociforo v Penna, 42 AD3d514 [2007]; Tobias v Chupenko, 41 AD3d at 584; Mejia v DeRose, 35 AD3d 407[2006]). Mastro, J.P., Santucci, Dickerson, Belen and Austin, JJ., concur.