ENDZWEIG MOROV v. MV TRANSPORTATION INC (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their notice of appeal and brief, from so much an order of the Supreme Court, Kings County (Balter, J.), dated December 10, 2006, as granted those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Zoya Endzweig-Morov and Leah Aminov on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The defendants met their prima facie burden of showing that neither the plaintiff Zoya Endzweig-Morov (hereinafter Zoya), nor the plaintiff Leah Aminov (hereinafter Leah), sustained 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;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49-50, 789 N.Y.S.2d 281).   In opposition, the plaintiffs failed to raise a triable issue of fact.   The affirmed medical reports prepared by Aric Hausknecht, Zoya and Leah's examining neurologist, were without any probative value, since he clearly relied on the unsworn medical reports of others in reaching his conclusions therein (see Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415;  Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Furrs v. Griffith, 43 A.D.3d 389, 841 N.Y.S.2d 594;  see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   The medical reports prepared by David Khasidy and Howard Baum also were insufficient to raise a triable issue of fact, since they were not based on recent examinations of Zoya or Leah (see Amato v. Fast Repair Inc., 42 A.D.3d 477, 840 N.Y.S.2d 394;  Ali v. Mirshah, 41 A.D.3d 748, 840 N.Y.S.2d 83;  Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102).   The chiropractic report dated October 14, 2003, concerning Zoya, and the medical reports prepared by Edward Weiland concerning both Zoya and Leah were unaffirmed and thus without any probative value (see 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;  see also Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   The magnetic resonance imaging reports prepared by Joseph Leadon merely showed that, as of September 14, 2003, Zoya had a bulging disc at L5-S1, and Leah had a bulging disc at L3-4, a protrusion at L4-5, and a herniated disc at L5-S1. 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, 35 A.D.3d 407, 825 N.Y.S.2d 722;  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;  Diaz v. Turner, 306 A.D.2d 241, 761 N.Y.S.2d 93).   Moreover, Leadon did not offer any opinion on the cause of the disc pathology that was noted in the magnetic resonance imaging reports (see Collins v. Stone, 8 A.D.3d 321, 322, 778 N.Y.S.2d 79).