GRECO v. JACKSON (2001)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Segal, J.), dated November 8, 2000, 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, the motion is granted, and the complaint is dismissed.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of this accident (see, Duldulao v. City of New York, 284 A.D.2d 296, 725 N.Y.S.2d 380;  Villalta v. Schechter, 273 A.D.2d 299, 300, 710 N.Y.S.2d 87;  Nisnewitz v. Renna, 273 A.D.2d 210, 709 N.Y.S.2d 435;  Guzman v. Paul Michael Mgt., 266 A.D.2d 508, 698 N.Y.S.2d 719;  Kosto v. Bonelli, 255 A.D.2d 557, 681 N.Y.S.2d 293).

In opposition to the defendants' motion for summary judgment, the plaintiff submitted evidence in admissible form that an MRI of her cervical spine taken in December 1997 revealed a bulging disc and another MRI of her lumbar spine taken in February 2000 revealed bulging discs.   Although a bulging disc may constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Duldulao v. City of New York, supra;  Monette v. Keller, 281 A.D.2d 523, 721 N.Y.S.2d 839), under the circumstances of this case, it would be sheer speculation to conclude that the motor vehicle accident which occurred on October 5, 1995, was the proximate cause of the plaintiff's bulging discs (see, Ekundayo v. GHI Auto Leasing Corp., 273 A.D.2d 346, 709 N.Y.S.2d 603;  Waaland v. Weiss, 228 A.D.2d 435, 643 N.Y.S.2d 635).   Furthermore, the record does not contain any medical evidence indicating the treatment the plaintiff received for her alleged injuries during the nine-month period after the accident (see, Guevara v. Conrad, 273 A.D.2d 198, 708 N.Y.S.2d 698;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).   Accordingly, the defendants' motion for summary judgment should have been granted.