LAGOIS v. PUBLIC ADMINISTRATOR OF SUFFOLK COUNTY

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Supreme Court, Appellate Division, Second Department, New York.

Barbara LAGOIS, Appellant, v. PUBLIC ADMINISTRATOR OF SUFFOLK COUNTY, etc., et al., Respondents.

Decided: March 24, 2003

FRED T. SANTUCCI, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, HOWARD MILLER and WILLIAM F. MASTRO, JJ. Agoglia, Fassberg, Holland & Crowe, P.C., Mineola, N.Y. (Craig D. Holland of counsel), for appellant. Adler & Larkin, Riverhead, N.Y. (Erica L. Ingebretsen of counsel), for respondents.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), entered December 21, 2001, as granted that branch of the defendants' motion which was for summary judgment dismissing the portion of the complaint which sought to recover damages for personal injuries 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 affirmed insofar as appealed from, with costs.

The defendants sustained their prima facie burden of proving that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition, the plaintiff failed to raise a triable issue of fact.

Although a herniated or bulging disc may constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Monette v. Keller, 281 A.D.2d 523, 721 N.Y.S.2d 839;  Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853), in this case, the plaintiff had a history of cervical disc herniation, and the magnetic resonance imaging report submitted in evidence indicated certain degenerative changes in the plaintiff's cervical spine.   In the absence of an explanation by the plaintiff's expert as to the significance of the pre-existing conditions and degenerative findings (see Monette v. Keller, supra), it would be sheer speculation to conclude that the accident of December 28, 1997, was the cause of the plaintiff's injuries (see Dimenshteyn v. Caruso, 262 A.D.2d 348, 694 N.Y.S.2d 66;  Waaland v. Weiss, 228 A.D.2d 435, 643 N.Y.S.2d 635).   Furthermore, the affidavit of the plaintiff's treating chiropractor consisted in large part of conclusory assertions tailored to meet statutory requirements (see Watt v. Eastern Investigative Bur., 273 A.D.2d 226, 708 N.Y.S.2d 472;  Medina v. Zalmen Reis & Assocs., 239 A.D.2d 394, 658 N.Y.S.2d 36).   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

The plaintiff's remaining contentions are without merit.

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