HARGROVE v. NEW YORK CITY TRANSIT AUTHORITY (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lane, J.), entered January 25, 2007, which granted the motion of the defendants New York City Transit Authority and Richard K. Yanity and the separate motion of the defendants Callie M. Sams and Lance Sams for summary judgment dismissing the complaint insofar as asserted against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs payable to the defendants.

 The Supreme Court properly determined that the defendants satisfied their respective prima facie burdens on their separate motions for summary judgment by showing that the plaintiff did not sustain 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 plaintiff failed to raise a triable issue of fact.   The plaintiff relied on various unaffirmed and unsworn medical reports in opposing the defendants' motions, all of which were without any probative value (see 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, 748, 844 N.Y.S.2d 71;  Nociforo v. Penna, 42 A.D.3d 514, 515, 840 N.Y.S.2d 396;  see also Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   The affirmation of Dr. Arden Kaisman, one of the plaintiff's physicians, also was insufficient to raise a triable issue of fact since Dr. Kaisman relied on an unsworn report of another physician in reaching his conclusions (see Malave v. Basikov, 45 A.D.3d 539, 540, 845 N.Y.S.2d 415;  Govori v. Agate Corp., 44 A.D.3d 821, 843 N.Y.S.2d 459;  Verette v. Zia, 44 A.D.3d at 748, 844 N.Y.S.2d 71;  Furrs v. Griffith, 43 A.D.3d 389, 390, 841 N.Y.S.2d 594;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).

 The plaintiff's magnetic resonance imaging reports merely showed that as of August 2004 the plaintiff had, among other things, a bulging disc at L5-S1. The mere existence of a herniated or 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 injury and its duration (see Shvartsman v. Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600;  Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114;  Tobias v. Chupenko, 41 A.D.3d 583, 584, 837 N.Y.S.2d 334;  Mejia v. DeRose, 35 A.D.3d 407, 407-408, 825 N.Y.S.2d 722).   Further, the plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact, as there was no objective medical evidence in support of it (see Shvartsman v. Vildman 47 A.D.3d 700, 849 N.Y.S.2d 600;  Tobias v. Chupenko, 41 A.D.3d at 584, 837 N.Y.S.2d 334).

 The plaintiff's remaining admissible medical submissions were insufficient to establish that he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133).