| Rubencamp v Arrow Exterminating Co., Inc. |
| 2010 NY Slip Op 09084 [79 AD3d 509] |
| December 9, 2010 |
| Appellate Division, First Department |
| Maura Rubencamp, Appellant, v Arrow Exterminating Co., Inc.,et al., Respondents. |
—[*1] Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York (Kevin L. Kelly of counsel), forrespondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered August 11, 2009, which, inthis action seeking damages as a result of injuries purportedly sustained in a motor vehicle accident,granted defendants' motion for summary judgment dismissing the complaint on the ground of lack ofserious injury pursuant to Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants satisfied their initial burden of establishing, prima facie, the absence of any triablequestions of fact so as to entitle them to judgment as a matter of law (see Smalls v AJI Indus., Inc., 10 NY3d733, 735 [2008]). In support of their motion they submitted the affirmed reports of an orthopedicsurgeon, a neurologist and a dentist, supported by specific tests that had been performed upon plaintiff,establishing that the subject accident did not cause her to suffer a serious injury in the form of apermanent consequential limitation of a body organ or a significant limitation of use of a body functionor system (see Zhijian Yang v Alston, 73AD3d 562, 563 [2010]; Santiago vBhuiyan, 71 AD3d 485 [2010]). In opposition thereto, plaintiff did not present any objectiveassessment of her condition, based upon sworn and/or certified records, that was contemporaneouswith the accident (see Pou v E&S WholesaleMeats, Inc., 68 AD3d 446, 447 [2009]; Lopez v Abdul-Wahab, 67 AD3d 598, 599 [2009]). While evidence,otherwise excludable at trial, may be considered for the purpose of denying a motion for summaryjudgment, such proof cannot be the sole basis for the court's determination (see Clemmer v Drah Cab Corp., 74 AD3d660, 661 [2010]). The affirmed report of August 4, 2008 by plaintiff's treating chiropractor, theonly admissible medical evidence that was presented in opposition to defendants' motion, failed to raisea triable question of fact since it reviewed his findings from an examination performed in July 2008,which was 2½ years after the accident (see Vargas v Ahmed, 41 AD3d 328, 329 [2007]).
In any event, to the extent that the MRIs done upon plaintiff in March 2006 revealed that she hadsome herniated discs, it is well settled that the mere existence of "bulging or herniated discs are not, inand of themselves, evidence of serious injury without competent objective evidence of the limitationsand duration of the disc injury" (DeJesus vPaulino, 61 AD3d 605, 608 [2009]). Moreover, plaintiff's alleged limitations were set forth inan unsworn report [*2]adopted by plaintiff's treating chiropractor in hisown unsworn report, and, consequently, the motion court appropriately rejected the subject test results.
Insofar as concerned the 90/180-day category of serious injury, "the reference to plaintiffs' proofand deposition testimony sufficiently refuted the 90/180 day allegation of serious injury" (id. at607). Concur—Mazzarelli, J.P., Friedman, McGuire, Renwick and Richter, JJ.