| Simanovskiy v Barbaro |
| 2010 NY Slip Op 03304 [72 AD3d 930] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Boris Simanovskiy, Respondent/CounterclaimDefendant-Appellant, and Nadezhda Simanovskaya, Respondent, v Maria Barbaro et al.,Appellants/Counterclaim Plaintiffs-Respondents. |
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In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.),dated April 23, 2009, as denied their motion for summary judgment dismissing the complaint onthe ground that neither of the plaintiffs sustained a serious injury within the meaning ofInsurance Law § 5102 (d), and the counterclaim defendant Boris Simanovskiycross-appeals from stated portions of the same order.
Ordered that the order is reversed insofar as appealed from, on the law, and the defendants'motion for summary judgment dismissing the complaint is granted; and it is further,
Ordered that the cross appeal is dismissed as academic; and it is further,
Ordered that one bill of costs is awarded to the defendants, payable by theplaintiffs-respondents.
The defendants met their prima facie burden of showing that neither of the plaintiffssustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiffs failed toraise an issue of fact.
Neither plaintiff offered competent medical evidence to demonstrate the existence of asignificant range-of-motion limitation in the cervical or lumbar regions of their spinescontemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890 [2010]; Caraballo v Kim, 63 AD3d 976,977 [2009]; Niles v Lam Pakie Ho,61 AD3d 657, 659 [2009]; Washington v Mendoza, 57 AD3d 972 [2008]; Magid v Lincoln Servs. Corp., 60AD3d 1008 [2009]). Although the affirmations and affirmed [*2]medical reports of the plaintiffs' treating physician, Dr. BorisDudelzak, found "decreased" range of motion in the cervical and lumbar regions of bothplaintiffs' spines, he failed to quantify the results of his range-of-motion tests (see Barnett v Smith, 64 AD3d669, 671 [2009]; Kuchero vTabachnikov, 54 AD3d 729, 730 [2008]; Duke v Saurelis, 41 AD3d 770, 771 [2007]). Furthermore, thecomputerized range-of-motion tests referred to in Dr. Dudelzak's affirmations were not inadmissible form because they were not affirmed by someone with personal knowledge of thefacts (see Taylor v Flaherty, 65AD3d 1328 [2009]; see also Luna vMann, 58 AD3d 699, 700 [2009]; Washington v Mendoza, 57 AD3d 972 [2008]). Withoutadmissible evidence of quantified range-of-motion limitations contemporaneous with theaccident, the plaintiffs could not have established the duration of the injuries required to raise atriable issue of fact as to whether they sustained a serious injury under the permanentconsequential limitation or significant limitation of use categories of the no-fault law (seeKuchero v Tabachnikov, 54 AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]).
The affirmed magnetic resonance imaging reports of the plaintiffs' radiologist, whichindicated that the plaintiff Boris Simanovskiy suffered from bulging cervical and lumbar discs,and that the plaintiff Nadezhda Simanovskaya suffered from a torn meniscus, also wereinsufficient to raise a triable issue of fact. The existence of bulging discs and torn ligaments isnot evidence of a serious injury in the absence of objective evidence of the extent and duration ofthe alleged physical limitations resulting from these injuries (see Casimir v Bailey, 70 AD3d 994 [2010]; Bleszcz v Hiscock, 69 AD3d 890[2010]; Mora v Riddick, 69 AD3d591 [2010]; Caraballo v Kim,63 AD3d 976, 977-978 [2009]).
In light of our determination, the cross appeal has been rendered academic. Covello, J.P.,Florio, Eng and Chambers, JJ., concur.