| Wetzel v Santana |
| 2011 NY Slip Op 08279 [89 AD3d 554] |
| November 17, 2011 |
| Appellate Division, First Department |
| Gerhard Wetzel et al., Appellants, v Juan Santana et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered March 23, 2010, which,insofar as appealed from as limited by the briefs, in this action for personal injuries sustainedwhen plaintiff pedestrian Gerhard Wetzel was struck by defendants' vehicle as he crossed thestreet, granted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Defendants established their entitlement to judgment as a matter of law by presentingevidence showing that plaintiff did not suffer a serious injury within the meaning of InsuranceLaw § 5102 (d). Defendants submitted the affirmed report of an orthopedist who examinedplaintiff and found that he had normal ranges of motion in his cervical spine and that the limitedranges of motions in his lumbar spine were related to his age (see Torres v Triboro Servs., Inc., 83 AD3d 563 [2011]).
In opposition, plaintiff did not raise a triable issue of fact. Plaintiff failed to submitcompetent medical evidence showing either recent or contemporaneous range of motion testing.Accordingly, he failed to demonstrate a causal connection between his injuries and the accident(see Pou v E&S Wholesale Meats,Inc., 68 AD3d 446 [2009]). Although the unaffirmed report of the MRI performed uponplaintiff in November 2006 revealed the presence of herniated discs in the cervical spine, themere existence of "bulging or herniated discs are not, in and of themselves, evidence of seriousinjury without competent objective evidence of the limitations and duration of the disc injury"(DeJesus v Paulino, 61 AD3d605, 608 [2009]). The MRI also fails to support plaintiff's claims since it was taken morethan two years after the accident.
Furthermore, plaintiff's bill of particulars, wherein he alleged that he was confined to bed fortwo to three days after the accident, is fatal to the claim under the 90/180-day category ofInsurance Law § 5102 (d) (seeLopez v Eades, 84 AD3d 523 [2011]).
We have considered plaintiffs' remaining contentions and find them unavailing.Concur—Gonzalez, P.J., Tom, Catterson, Richter and RomÁn, JJ.