WASHINGTON v. MENDOZA (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated January 31, 2008, which denied their 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 defendants' motion for summary judgment dismissing the complaint is granted.

 The defendants met their prima facie burden of 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, which occurred on March 17, 2002 (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.   The so-called “Certification” from the plaintiff's treating physician, Dr. Gustave Drivas, was insufficient to affirm the contents of any of the reports or records that were annexed thereto, including his own reports.   Thus, the reports or records of Dr. Drivas, Dr. Deepak Sachdev, Dr. Bryan Douglas, and Dr. Valery Kalika were without any probative value since they were unaffirmed or unsworn (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Uribe-Zapata v. Capallan, 54 A.D.3d 936, 864 N.Y.S.2d 118;  Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114;  Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   The same conclusion applies to the unaffirmed magnetic resonance imaging reports of Dr. Jeffrey Chess.

 While the plaintiff proffered results of a recent examination by Dr. Joseph Paul, the plaintiff's examining orthopedic surgeon, in which objective testing revealed significant limitations in the range of the motion of the plaintiff's cervical spine, lumbar spine, and left shoulder ranges of motion, neither the plaintiff nor Dr. Paul proffered competent medical evidence demonstrating the existence of similar range of motion limitations that were contemporaneous with the subject accident (see Leeber v. Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614;  Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408;  D'Onofrio v. Floton, Inc., 45 A.D.3d 525, 845 N.Y.S.2d 421).

 The affirmed magnetic imaging reports of Dr. Robert Scott Schepp concerning the plaintiff's cervical spine and left shoulder merely revealed that as of March and April 2002, the plaintiff had disc bulges at C4-5, C5-6, and C6-7, as well as Grade III tendonitis of the distal supraspinatus tendon of the left shoulder.   The mere existence of a bulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Cornelius v. Cintas Corp., 50 A.D.3d 1085, 1087, 857 N.Y.S.2d 637;  Shvartsman v. Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600;  Tobias v. Chupenko, 41 A.D.3d 583, 837 N.Y.S.2d 334).   The self-serving affidavit of the plaintiff was insufficient to meet this requirement (see Sealy v. Riteway-1, Inc., 54 A.D.3d 1018, 865 N.Y.S.2d 129;  Hargrove v. New York City Tr. Auth., 49 A.D.3d 692, 854 N.Y.S.2d 182;  Shvartsman v. Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600).

Lastly, the plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v. Park, 50 A.D.3d 995, 858 N.Y.S.2d 197;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).