ALBANO v. ONOLFO (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Spinola, J.), entered April 6, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that the injured 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 motion for summary judgment dismissing the complaint is granted.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124;   Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281).   In opposition, the plaintiff failed to raise a triable issue of fact.   The findings contained in the affirmation of the plaintiff's treating orthopedist, and his accompanying reports, were not based on a recent examination of the plaintiff (see D'Alba v. Yong-Ae Choi, 33 A.D.3d 650, 823 N.Y.S.2d 423;   Gomez v. Epstein, 29 A.D.3d 950, 818 N.Y.S.2d 101;  Legendre v. Siqing Bao, 29 A.D.3d 645, 816 N.Y.S.2d 495;  Cerisier v. Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140;  Tudisco v. James, 28 A.D.3d 536, 813 N.Y.S.2d 482;   Barzey v. Clarke, 27 A.D.3d 600, 815 N.Y.S.2d 106;  Murray v. Hartford, 23 A.D.3d 629, 804 N.Y.S.2d 416).   Moreover, the plaintiff failed to adequately explain a lengthy gap in her treatment between 2003 and her last examination in 2005 (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Gomez v. Epstein, 29 A.D.3d 950, 818 N.Y.S.2d 101).

The only other medical proof submitted by the plaintiff was the affirmation and lumbar magnetic resonance imaging report of her treating radiologist.   His affirmation and accompanying report noted only the existence of herniated and bulging discs in the plaintiff's spine.   The mere existence of a herniated or bulging disc is not evidence of serious injury in the absence of objective medical evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Yakubov v. CG Trans Corp., 30 A.D.3d 509, 817 N.Y.S.2d 353;  Kearse v. New York City Tr. Auth., supra;  Diaz v. Turner, 306 A.D.2d 241, 761 N.Y.S.2d 93).   The plaintiff's self-serving affidavit was insufficient to meet that requirement (see Yakubov v. CG Trans Corp., supra;  see also Felix v. New York City Tr. Auth., 32 A.D.3d 527, 819 N.Y.S.2d 835;  Fisher v. Williams, 289 A.D.2d 288, 734 N.Y.S.2d 497), and the plaintiff's radiologist expressed no opinion as to causation (see Collins v. Stone, 8 A.D.3d 321, 778 N.Y.S.2d 79).

Finally, the plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the accident (see Felix v. New York City Tr. Auth., supra;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).