ST PIERRE v. FEVRIER (2006)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated April 11, 2005, which denied her 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.

 It is well settled that the existence of a bulging disc is not evidence of serious injury “in the absence of objective evidence of the extent of alleged physical limitations resulting from the disc injury” (Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 50, 789 N.Y.S.2d 281;  see Meely v. 4 G's Truck Renting Co., 16 A.D.3d 26, 30, 789 N.Y.S.2d 277;  see also Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278).   Here, the affirmed report of the defendant's examining physician established that the plaintiff did not sustain physical limitations from the bulging discs.   The plaintiff did not submit opposition papers to rebut the defendant's prima facie showing of the absence of a serious injury.   Under the circumstances, the court should have granted the defendant's motion to dismiss the complaint (see Insurance Law § 5102[d];  Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Kearse v. New York City Tr. Auth., supra;  Meely v. 4 G's Truck Renting Co., supra ).