| Catalano v Kopmann |
| 2010 NY Slip Op 04328 [73 AD3d 963] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Suzanne Catalano, Appellant, v Madeline Kopmann,Respondent. |
—[*1] Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,Uniondale, N.Y. [Kathleen D. Foley], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Lally, J.), entered April 9, 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 defendant met her prima facie burden of establishing 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 submissions of Bonnie Corey, one of the plaintiff's treating chiropractors, failed to raisea triable issue of fact. Dr. Corey failed to express any opinion as to whether any injuries orlimitations she noted were caused by the subject accident (see Shaji v City of New Rochelle, 66 AD3d 760 [2009]; Morris v Edmond, 48 AD3d 432[2008]; Itskovich v Lichenstadter, 2AD3d 406, 407 [2003]).
The submissions of Jeffrey Rosenberg, another chiropractor for the plaintiff, also failed toraise a triable issue of fact. Those submissions set forth no findings based on objective testing ofthe plaintiff. At most, those submissions noted the plaintiff's subjective complaints of pain (see Sham v B&P Chimney Cleaning &Repair Co., Inc., 71 AD3d 978 [2010]; Ambos v New York City Tr. Auth., 71 AD3d 801 [2010]; House v MTA Bus Co., 71 AD3d732 [2010]).
The submissions of Roman Sorin, the plaintiff's treating physician, also failed to raise atriable issue of fact. Although Dr. Sorin examined the plaintiff seven months after the accidentand noted during the examination significant limitations in the range of motion in the cervicaland lumbar regions of the plaintiff's spine, and examined the plaintiff again in 2008 notingsignificant limitations in the cervical region of the plaintiff's spine only, neither he nor theplaintiff proffered competent medical evidence that revealed the existence of significantlimitations in either region of [*2]the plaintiff's spine that werecontemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890 [2010]; Taylor v Flaherty, 65 AD3d 1328[2009]; Fung v Uddin, 60 AD3d992 [2009]; Gould vOmbrellino, 57 AD3d 608 [2008]; Kuchero v Tabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49 AD3d498 [2008]). Thus, the plaintiff did not raise a triable issue of fact as to whether shesustained a serious injury under the permanent loss, permanent consequential limitation of use,or significant limitation of use categories of Insurance Law § 5102 (d) (see Jack vAcapulco Car Serv., Inc., 72 AD3d 646 [2010]; Bleszcz v Hiscock, 69 AD3d at 891;Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3dat 498).
The evidence submitted by the plaintiff, which revealed the existence of herniated discs atC3-4 and C5-6, and a bulging disc at L4-5, on its own, did not raise a triable issue of fact. Themere existence of a herniated or bulging disc is not evidence of a serious injury in the absence ofobjective evidence of the extent of the alleged physical limitations resulting from the disc injuryand its duration (see Keith v Duval,71 AD3d 1093 [2010]; Casimir vBailey, 70 AD3d 994 [2010]; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 [2009];Pompey v Carney, 59 AD3d416 [2009]). The plaintiff's affidavit was insufficient to meet this requirement (see Luizzi-Schwenk v Singh, 58 AD3d811, 812 [2009]).
The plaintiff failed to submit competent medical evidence that the injuries she allegedlysustained as a result of the subject accident rendered her unable to perform substantially all ofher daily activities for not less than 90 days of the first 180 days thereafter (see Haber v Ullah, 69 AD3d 796,797 [2010]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). The plaintiff's own depositiontestimony established that she missed, at most, two to three days of work as a result of thesubject accident. Rivera, J.P., Florio, Dickerson, Chambers and Lott, JJ., concur.