FURRS v. GRIFFITH (2007)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated September 26, 2006, which denied the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

 The defendant established a prima facie entitlement to judgment as a matter of law by showing 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., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  see also Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281).   In opposition, the plaintiff failed to raise a triable issue of fact.   The affirmation of the plaintiff's treating physician was without probative value in opposing the motion since he clearly relied on the unsworn reports of others in arriving at his conclusions (see Phillips v. Zilinsky, 39 A.D.3d 728, 834 N.Y.S.2d 299;  Porto v. Blum, 39 A.D.3d 614, 833 N.Y.S.2d 245). The remaining medical reports and records concerning the plaintiff were unsworn, uncertified, or failed to raise a triable issue of fact (see Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722;  see also Rodriguez v. Cesar, 40 A.D.3d 731, 835 N.Y.S.2d 438;  Phillips v. Zilinsky, supra ).   The mere existence of a herniated or bulging disc, or even of radiculopathy, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Mejia v. De Rose, supra;  Yakubov v. CG Trans Corp., 30 A.D.3d 509, 817 N.Y.S.2d 353;  Cerisier v. Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140;  Bravo v. Rehman, 28 A.D.3d 694, 814 N.Y.S.2d 225;  Kearse v. New York City Tr. Auth., supra at 50, 789 N.Y.S.2d 281;  Diaz v. Turner, 306 A.D.2d 241, 761 N.Y.S.2d 93;  see also Foley v. Karvelis, 276 A.D.2d 666, 714 N.Y.S.2d 337).

 The plaintiff failed to proffer competent medical evidence that she sustained a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).   The plaintiff admitted in her own deposition testimony that she returned to work within three days of the subject accident.