ELDRAINY v. HASSAIN (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Taylor, J.), entered January 29, 2008, 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, and the defendants' motion for summary judgment dismissing the complaint is granted.

 The defendants met their prima facie burden 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.   While the sworn medical report of Dr. Jeffrey Rauch and the affirmed medical report of Dr. Arkadiy Shusterman set forth significant range-of-motion limitations in the plaintiff's cervical and lumbar spine based on recent examinations, neither these experts nor the plaintiff proffered objective medical evidence that revealed the existence of limitations in his spine that were contemporaneous with the subject accident (see Leeber v. Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614;  Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408;  D'Onofrio v. Floton, Inc., 45 A.D.3d 525, 845 N.Y.S.2d 421).

 The affirmation of Dr. Harvey Lefkowitz essentially established that, as of February 11, 2004, there was evidence that the plaintiff had herniated discs at C4-5 and C5-6. The mere existence of a herniated 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 disc injury and its duration (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, lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083, 2008 N.Y. Slip Op. 86661 [2008];  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, 789 N.Y.S.2d 281).   The plaintiff's self-serving affidavit was insufficient to meet that requirement (see Rabolt v. Park, 50 A.D.3d 995, 858 N.Y.S.2d 197;  Young Soo Lee v. Troia, 41 A.D.3d 469, 837 N.Y.S.2d 299;  Nannarone v. Ott, 41 A.D.3d 441, 837 N.Y.S.2d 311).   The plaintiff's remaining submissions did not constitute competent evidence sufficient to oppose the defendants' motion since they were neither sworn to, affirmed, notarized, nor certified (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;  see also Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722;  Kunz v. Gleeson, 9 A.D.3d 480, 781 N.Y.S.2d 50).

Finally, the plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained in the accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v. Park, 50 A.D.3d 995, 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, 570, 712 N.Y.S.2d 133).