Lonnie Jackson, et al., Plaintiffs-Appellants, v. Waheed Brokerage, Inc., Defendant. (2008)

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered May 9, 2007, which granted the motion by defendants Rain Hacking Corp. and Ashraf for summary judgment dismissing the complaint of plaintiffs Jackson, Graham and Ruby Page, unanimously affirmed, without costs.

The moving defendants' prima facie showing of entitlement to summary judgment demonstrated that plaintiffs did not satisfy the serious injury threshold of Insurance Law § 5102(d).  Plaintiffs failed to satisfy their evidentiary burden to submit, in opposition to the motion, “objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal” (Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).   Although the MRI reports were sufficient to establish the existence of disc bulges and herniations (Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ), plaintiffs' expert attributed present pain to an unquantified loss of range of motion, and did “not report his personal observations of plaintiff[s] while sitting and standing, or identify the tests, if any, he performed,” or compare his observations to “the norm” (Burke v. Torres, 8 A.D.3d 118, 119, 778 N.Y.S.2d 486 [2004];  compare Garner v. Tong, 27 A.D.3d 401, 811 N.Y.S.2d 400 [2006];  see also Gonzalez v. Vasquez, 301 A.D.2d 438, 754 N.Y.S.2d 7 [2003] ).   With regard to plaintiff Jackson, the physicians failed to address the degenerative nature of his pre-existing condition (Mullings v. Huntwork, 26 A.D.3d 214, 810 N.Y.S.2d 443 [2006];  see also Montgomery v. Pena, 19 A.D.3d 288, 798 N.Y.S.2d 17 [2005] ).