IUSMEN v. KONOPKA (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), entered December 30, 2005, which granted the defendants' 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 affirmed, with costs.

 The defendants established, prima facie, that the plaintiff did not sustain 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).   In opposition, the plaintiff failed to raise a triable issue of fact.   To the extent that the plaintiff relied on her hospital records and treatment reports of Long Island City Pain Management & Rehabilitation Offices, P.C., those submissions were without any probative value in opposing the defendants' motion since they were either uncertified (see Mejia v. DeRose, 35 A.D.3d 407, 408, 825 N.Y.S.2d 722), or unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Bycinthe v. Kombos, 29 A.D.3d 845, 845-846, 815 N.Y.S.2d 693;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692).

 The affirmed medical report and affirmation of the plaintiff's examining neurologist also failed to raise a triable issue of fact.   While the plaintiff's examining neurologist set forth limitations in the plaintiff's cervical and lumbar spine range of motion based on a recent examination in his affirmed medical report and affirmation, neither he nor the plaintiff proffered competent medical evidence showing range of motion limitations in the plaintiff's spine that were contemporaneous with the subject accident (see Felix v. New York City Tr. Auth., 32 A.D.3d 527, 528, 819 N.Y.S.2d 835;  Ramirez v. Parache, 31 A.D.3d 415, 416, 818 N.Y.S.2d 238;  Bell v. Rameau, 29 A.D.3d 839, 839, 814 N.Y.S.2d 534;  Ranzie v. Abdul-Massih, 28 A.D.3d 447, 448, 813 N.Y.S.2d 473;  Li v. Woo Sung Yun, 27 A.D.3d 624, 625, 812 N.Y.S.2d 604;  Suk Ching Yeung v. Rojas, 18 A.D.3d 863, 864, 796 N.Y.S.2d 661;  Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 767 N.Y.S.2d 811).   It is also apparent that the plaintiff's examining neurologist relied on the unsworn reports of others in reaching the conclusions in his affirmed report and affirmation (see Elder v. Stokes, 35 A.D.3d 799, 828 N.Y.S.2d 138;  Felix v. New York City Tr. Auth., supra;  Vallejo v. Builders for Family Youth, Diocese of Brooklyn, Inc., 18 A.D.3d 741, 742, 795 N.Y.S.2d 712;  Mahoney v. Zerillo, 6 A.D.3d 403, 774 N.Y.S.2d 378;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   Furthermore, the affirmed submissions of the plaintiff evincing that she suffered from herniated discs in her lumbar and cervical spine were insufficient, on their own, to establish a serious injury.   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 Mejia v. DeRose, supra at 408, 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).   The plaintiff's self-serving affidavit was insufficient to satisfy this requirement (see Elder v. Stokes, supra at 800, 828 N.Y.S.2d 138;  Felix v. New York City Tr. Auth., supra ).