| Pierson v Edwards |
| 2010 NY Slip Op 07156 [77 AD3d 642] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Kimberly A. Pierson, Appellant, v Lisa B. Edwards,Respondent. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of theSupreme Court, Nassau County (Galasso, J.), entered August 5, 2009, which granted the defendant'smotion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d), and (2) as limited by her brief,from so much of an order of the same court, entered December 17, 2009, as, upon reargument andrenewal, adhered to the original determination.
Ordered that the appeal from the order entered August 5, 2009, is dismissed, as that order wassuperseded by the order entered December 17, 2009, made upon renewal and reargument; and it isfurther,
Ordered that the order entered December 17, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
The Supreme Court correctly determined that the defendant met her prima facie burden ofdemonstrating 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., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, theplaintiff failed to raise a triable issue of fact. In this regard, the magnetic resonance imaging (hereinafterMRI) reports dated October 9, 2003, and September 16, 2003, were unaffirmed and, thus, were notin admissible form (see Grasso v Angerami, 79 NY2d 813 [1991]; Resek v Morreale, 74 AD3d 1043[2010]; Lozusko v Miller, 72 AD3d908 [2010]). Additionally, although the MRI reports of the cervical region of the plaintiff's spine,dated January 31, 2005, and of the lumbar region of her spine, dated May 16, 2005, the contents ofwhich were set forth in the affirmed medical report of [*2]thedefendant's examining neurologist (seeLozusko v Miller, 72 AD3d 908 [2010]; Zarate v McDonald, 31 AD3d 632 [2006]; Ayzen v Melendez,299 AD2d 381 [2002]), indicated that the plaintiff had sustained, among other things, disc bulges in thecervical and lumbar regions of her spine, the mere existence of bulging discs, in the absence of objectiveevidence as to the extent of the alleged physical limitations resulting from the injuries and their duration,is not evidence of serious injury (see Lozuskov Miller, 72 AD3d 908 [2010]; Shvartsman v Vildman, 47 AD3d 700 [2008]; Patterson v NY Alarm Response Corp., 45AD3d 656 [2007]; Tobias vChupenko, 41 AD3d 583 [2007]; Mejia v DeRose, 35 AD3d 407 [2006]).
The affirmation of the plaintiff's treating chiropractor did not constitute competent evidence tooppose the motion for summary judgment because it was not in affidavit form (see CPLR2106; see also Perdomo v Scott, 50AD3d 1115 [2008]; Pichardo v Blum, 267 AD2d 441 [1999]; Doumanis vConzo, 265 AD2d 296 [1999]). Moreover, the affidavit of that chiropractor submitted uponrenewal failed to quantify any limitations in the plaintiff's ranges of motion revealed by objective medicaltesting and, thus, was inadequate to defeat summary judgment (see Robinson-Lewis v Grisafi, 74 AD3d 774, 775 [2010]; Ortiz v Ianina Taxi Servs., Inc., 73 AD3d721, 722 [2010]).
Likewise, the affirmed medical report of the plaintiff's examining orthopedic surgeon failed to raisea triable issue of fact, since that physician did not examine the plaintiff for the first time until almost4½ years after the subject accident. While that report set forth range-of-motion findings from therecent examination, neither the orthopedic surgeon nor the plaintiff proffered competent medicalevidence that revealed the existence of significant limitations which were contemporaneous with thesubject accident (see Resek v Morreale,74 AD3d 1043 [2010]; Delarosa vMcLedo, 74 AD3d 1012 [2010]; Vilomar v Castillo, 73 AD3d 758 [2010]; Bleszcz v Hiscock, 69 AD3d 890[2010]; Taylor v Flaherty, 65 AD3d1328 [2009]; Fung v Uddin, 60AD3d 992 [2009]; Gould vOmbrellino, 57 AD3d 608 [2008]; Kuchero v Tabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49 AD3d498 [2008]). Absent such contemporaneous findings, the plaintiff's submissions were inadequate towithstand summary judgment under the permanent loss, permanent consequential limitation of use, orsignificant limitation of use categories of Insurance Law § 5102 (d) (see Resek v Morreale, 74 AD3d 1043[2010]; Vilomar v Castillo, 73 AD3d758 [2010]; Jack v Acapulco Car Serv.,Inc., 72 AD3d 646 [2010]; Bleszczv Hiscock, 69 AD3d 890 [2010]; Taylor v Flaherty, 65 AD3d 1328 [2009]; Ferraro v Ridge Car Serv., 49 AD3d498 [2008]).
Finally, the plaintiff's submissions failed to set forth competent medical evidence that the injuries sheallegedly sustained 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 Nieves v Michael, 73 AD3d 716[2010]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Mastro, J.P., Florio, Dickerson, Belenand Lott, JJ., concur.