WARING v. GUIRGUIS (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated May 8, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).

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

 The plaintiffs were involved in automobile accident on December 17, 2000.   They allege that certain medical records demonstrate that they both suffered from bulging and/or herniated discs and that as a result, their ranges of motion are so substantially impaired as to constitute serious injuries.

 However, the mere existence of a herniated or bulging disc 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 Whitfield-Forbes v. Pazmino, 36 A.D.3d 901, 829 N.Y.S.2d 583;  Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722;  Yakubov v. CG Trans. Corp., 30 A.D.3d 509, 510, 817 N.Y.S.2d 353;  Cerisier v. Thibiu, 29 A.D.3d 507, 508, 815 N.Y.S.2d 140;  Bravo v. Rehman, 28 A.D.3d 694, 695, 814 N.Y.S.2d 225;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 50, 789 N.Y.S.2d 281;  Diaz v. Turner, 306 A.D.2d 241, 761 N.Y.S.2d 93).

The defendants made a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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;  Kearse v. New York City Tr. Auth., supra).   In opposition, the plaintiffs failed to raise a triable issue of fact.   Neither the affidavit of the plaintiffs' examining chiropractor nor the plaintiffs' affidavits adequately explain the five-year gap in medical treatment (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Cervino v. Gladysz-Steliga, 36 A.D.3d 744, 829 N.Y.S.2d 169;  Chan v. Casiano, 36 A.D.3d 580, 828 N.Y.S.2d 173;  Farozes v. Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706).