YOUNG SOO LEE v. TROIA (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated July 7, 2006, which granted 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 affirmed, with costs.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition, the plaintiff failed to raise a triable issue of fact.   The affirmation of his treating physician and the affirmed report of his examining orthopedic surgeon failed to address the findings of degeneration in his spine as noted in the affirmed medical report of the defendant's radiologist, rendering speculative the findings that the injuries to his spine were caused by the subject accident (see Giraldo v. Mandanici, 24 A.D.3d 419, 420, 805 N.Y.S.2d 124;  Lorthe v. Adeyeye, 306 A.D.2d 252, 253, 760 N.Y.S.2d 530;  Ginty v. MacNamara, 300 A.D.2d 624, 625, 751 N.Y.S.2d 790).

The magnetic resonance images of the plaintiff's cervical and lumbar spine, which showed multiple bulging and herniated discs, did not, alone, establish a serious injury (see 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;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49, 789 N.Y.S.2d 281).   The mere existence of a 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 Yakubov v. CG Trans Corp., supra;  Kearse v. New York City Tr. Auth., supra ).   The plaintiff's self-serving affidavit was insufficient to meet that requirement (see Yakubov v. CG Trans Corp., supra ).   The remaining submissions of the plaintiffs were without probative value in opposing the motion since they were unsworn/unaffirmed or uncertified (see Grasso v. Angerami, 79 N.Y.2d 813, 814-815, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Felix v. New York City Tr. Auth., 32 A.D.3d 527, 528, 819 N.Y.S.2d 835;  Yakubov v. CG Trans Corp., supra;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692;  see also CPLR 4518[c] ).