| Ortiz v Ianina Taxi Servs., Inc. |
| 2010 NY Slip Op 03888 [73 AD3d 721] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Jessica Ortiz, Respondent, v Ianina Taxi Services, Inc., etal., Appellants. |
—[*1] Sayegh & Sayegh, P.C., Yonkers, N.Y. (Elias Sayegh of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (O. Bellantoni, J.), entered September 25, 2009, whichdenied their motion for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) is granted.
The defendants met their prima facie burden of showing that the 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, the plaintiff failed to raise a triableissue of fact.
The affirmed medical report of the plaintiff's treating physician, Dr. Ricky Sayegh, wasinsufficient to raise a triable issue of fact. Dr. Sayegh's report merely noted that based upon arecent examination, the range of motion in the plaintiff's right knee was "decreased." However,Dr. Sayegh did not set forth the objective testing he did in order to arrive at that conclusion (see Keith v Duval, 71 AD3d 1093[2010]; Knopf v Sinetar, 69 AD3d809 [2010]; Spence vMikelberg, 66 AD3d 765 [2009]; Sapienza v Ruggiero, 57 AD3d 643, 644 [2008]). Furthermore, theextent of any limitation in the plaintiff's right knee cannot be determined because Dr. Sayeghfailed to quantify that limitation, or provide a qualitative assessment of that region of her body inhis report (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Acosta v Alexandre, 70 AD3d735 [2010]; Giannini v Cruz,67 AD3d 638, 639 [2009]; Taylor vFlaherty, 65 AD3d 1328 [2009]; Barnett v Smith, 64 AD3d 669, 671 [2009]).
The magnetic resonance imaging reports of the cervical and lumbar regions of the plaintiff's[*2]spine, which merely revealed the existence of bulging discsat C5-6 and L5-S1, also failed to raise a triable issue of fact. The mere existence of a bulgingdisc is not evidence of a serious injury in the absence of objective evidence of the extent of thealleged physical limitations resulting from the disc injury and its duration (see Keith v Duval, 71 AD3d 1093[2010]; Casimir v Bailey, 70 AD3d994 [2010]; Rivera v BushwickRidgewood Props., Inc., 63 AD3d 712, 713 [2009]; Pompey v Carney, 59 AD3d 416 [2009]).
The plaintiff also failed to submit competent medical evidence that the injuries she allegedlysustained in the subject accident rendered her unable to perform substantially all of her dailyactivities for not less than 90 days of the first 180 days subsequent to the subject accident(see Casimir v Bailey, 70 AD3d at 994; Sainte-Aime v Ho, 274 AD2d 569[2000]).
Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.Skelos, J.P., Dillon, Angiolillo, Eng and Sgroi, JJ., concur.