PONCIANO v. SCHAEFER (2009)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 3, 2008, which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs 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 defendant's motion for summary judgment dismissing the complaint is granted.

The defendant satisfied his prima facie burden of showing that neither of the plaintiffs 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).

 In opposition, the plaintiffs failed to raise a triable issue of fact.   The reports of Dr. Louis C. Rose, dated March 21, 2005, concerning the plaintiffs, as well as the report of Dr. Mario Nelson dated May 11, 2005, concerning only the plaintiff Aurora Ponciano, were without any probative value in opposing the defendant's motion because they were unaffirmed (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 November 20, 2007, report by Dr. Rose was insufficient to raise a triable issue of fact since Dr. Rose did not perform any range of motion testing at that time (see Fiorillo v. Arriaza, 52 A.D.3d 465, 466, 859 N.Y.S.2d 699;  Sharma v. Diaz, 48 A.D.3d 442, 443, 850 N.Y.S.2d 634).   The medical reports of Dr. Allen Rothpearl, although affirmed, established only that as of March and April 2005, Aurora had disc bulges in her lumbar spine and a disc bulge and protrusion in her cervical spine, and that as of March, April, and May 2005, the plaintiff Sirsa Ponciano had a disc protrusion in her thoracic spine, and disc bulges in her cervical spine and lumbar spine.   The existence of a herniated or bulging disc, however, is not sufficient to raise a triable issue of fact as to the existence of a serious injury without objective evidence of the extent and duration of the physical limitations allegedly resulting from the disc injury (see Sealy v. Riteway-1, Inc., 54 A.D.3d 1018, 865 N.Y.S.2d 129;  Kilakos v. Mascera, 53 A.D.3d 527, 862 N.Y.S.2d 529;  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;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49, 789 N.Y.S.2d 281).   The affidavits of the respective plaintiffs were insufficient to satisfy that requirement (see Rabolt v. Park, 50 A.D.3d 995, 996, 858 N.Y.S.2d 197;  Young Soo Lee v. Troia, 41 A.D.3d 469, 470, 837 N.Y.S.2d 299;  Nannarone v. Ott, 41 A.D.3d 441, 442, 837 N.Y.S.2d 311).

 Furthermore, neither the plaintiffs nor Dr. Rose explained the gap of more than 2 1/212 years between his initial treatment of them on March 21, 2005, and the more recent examinations by him on November 20, 2007 (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Strok v. Chez, 57 A.D.3d 887, 869 N.Y.S.2d 345;  Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192;  cf. Domanas v. Delgado Travel Agency, Inc., 56 A.D.3d 717, 868 N.Y.S.2d 132).

Finally, the plaintiffs failed to submit competent medical evidence that the injuries they allegedly sustained as a result of the accident rendered them unable to perform substantially all of their daily activities for not less than 90 days of the first 180 days thereafter (see Rabolt v. Park, 50 A.D.3d at 996, 858 N.Y.S.2d 197;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 536, 846 N.Y.S.2d 613;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).