HERNANDEZ v. TAUB (2005)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated July 1, 2004, 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 plaintiff's hospital emergency room records, and the affirmed medical reports of the defendant's examining neurologist and orthopedist indicating that the plaintiff had completely recovered from his injuries and was neither impaired nor disabled, as well as the affirmation of a radiologist indicating that MRIs of the plaintiff's spine had shown only degenerative conditions, sufficiently established a prima facie case 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).   The plaintiff's opposition consisted, inter alia, of computerized range of motion and sensory nerve conduction testing, unaffirmed medical reports which were without probative value (see Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692), and the affidavit of a chiropractor which failed to explain a 2 1/212 year gap in treatment (see Jimenez v. Kambli, 272 A.D.2d 581, 582, 708 N.Y.S.2d 460;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).   Moreover, the mere claim of a disc herniation, without more, is insufficient to show the existence of a serious injury (see Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49-50, 789 N.Y.S.2d 281;  Guzman v. Michael Mgt., 266 A.D.2d 508, 509, 698 N.Y.S.2d 719).   Accordingly, the plaintiff failed to raise a triable issue of fact, and the defendant's motion for summary judgment dismissing the complaint was properly granted.