David Cornelius, respondent, v. CINTAS CORPORATION

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

Alexander CORNELIUS, plaintiff, David Cornelius, respondent, v. CINTAS CORPORATION, et al., appellants.

Decided: April 29, 2008

STEVEN W. FISHER, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and ARIEL E. BELEN, JJ. Cullen and Dykman, LLP, Brooklyn, N.Y. (Patrick Neglia and Joseph Delfino of counsel), for appellants. Dominic Recchia (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Cullen, J.), dated June 21, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff David Cornelius on the ground that he 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 insofar as asserted by the plaintiff David Cornelius is granted.

The defendants met their prima facie burden of showing that the plaintiff David Cornelius (hereinafter David) 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;  see also Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773).   In opposition, David failed to raise a triable issue of fact.

 The submissions of Leon Bernstein, David's treating orthopedic surgeon, were insufficient to raise a triable issue of fact.   Bernstein's projections of permanent injuries and limitations had no probative value in the absence of a recent examination (see Ali v. Mirshah, 41 A.D.3d 748, 840 N.Y.S.2d 83;  Marziotto v. Striano, 38 A.D.3d 623, 831 N.Y.S.2d 551;  Elgendy v. Nieradko, 307 A.D.2d 251, 762 N.Y.S.2d 275).   Furthermore, although Bernstein's report provided range of motion findings, he failed to compare any of these findings to what is normal (see Page v. Belmonte, 45 A.D.3d 825, 846 N.Y.S.2d 351;  Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415;  Fleury v. Benitez, 44 A.D.3d 996, 845 N.Y.S.2d 101), and he failed to acknowledge in his reports or affirmation that David was involved in a prior accident in which he injured his back and neck.   As a result, Bernstein's conclusion in his report dated September 20, 2005, that the injuries and limitations in David's lumbar spine were caused by the subject accident, was speculative (see Moore v. Sarwar, 29 A.D.3d 752, 816 N.Y.S.2d 503;  Tudisco v. James, 28 A.D.3d 536, 813 N.Y.S.2d 482;  Bennett v. Genas, 27 A.D.3d 601, 813 N.Y.S.2d 446;  Allyn v. Hanley, 2 A.D.3d 470, 767 N.Y.S.2d 885).

 The “updated narrative report” of Aron Goldman, one of David's treating physicians, was insufficient to raise a triable issue of fact.   This medical report merely contained conclusory allegations tailored to meet statutory requirements (see Slavin v. Associates Leasing, 273 A.D.2d 372, 710 N.Y.S.2d 916;  Zargary v. Finisia Enters., 205 A.D.2d 683, 613 N.Y.S.2d 639).   Furthermore, Goldman's conclusions that David sustained “significant limitations” in the use of the cervical and lumbar regions of his spine and his left knee as a result of the subject accident were speculative in light of the fact that Goldman never acknowledged David's prior accident (see Moore v. Sarwar, 29 A.D.3d 752, 816 N.Y.S.2d 503;  Tudisco v. James, 28 A.D.3d 536, 813 N.Y.S.2d 482;  Bennett v. Genas, 27 A.D.3d 601, 813 N.Y.S.2d 446;   Allyn v. Hanley, 2 A.D.3d 470, 767 N.Y.S.2d 885), and never addressed the findings of the defendants' examining radiologist who concluded that David suffered from degenerative conditions in his cervical spine, lumbar spine, and left knee that predated the subject accident (see Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124;  Lorthe v. Adeyeye, 306 A.D.2d 252, 760 N.Y.S.2d 530;  Pajda v. Pedone, 303 A.D.2d 729, 757 N.Y.S.2d 452;  Ginty v. MacNamara, 300 A.D.2d 624, 751 N.Y.S.2d 790).

Moreover, neither David nor his treating physicians adequately explained the lengthy gap in his treatment between the time he stopped treatment in April 2004 and his most recent examination performed by Bernstein on August 31, 2005 (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Wei-San Hsu v. Briscoe Protective Sys., Inc., 43 A.D.3d 916, 842 N.Y.S.2d 455;  Bestman v. Seymour, 41 A.D.3d 629, 838 N.Y.S.2d 645;  Albano v. Onolfo, 36 A.D.3d 728, 830 N.Y.S.2d 205).

 The submission of David's magnetic resonance imaging reports merely established that, as of October and November 2003, he had a herniated nucleus pulposus at C5-6, bulging discs at C3 through C7, a linear meniscal tear of the posterior horn of the medial meniscus, and bulging discs at L3 through S1.   The mere existence of a herniated or bulging disc, and even a tear in a tendon, 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;  Tobias v. Chupenko, 41 A.D.3d 583, 837 N.Y.S.2d 334).   No such objective medical evidence was submitted by David in opposition to the defendants' motion.

David also failed to set forth any competent medical evidence 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, 712 N.Y.S.2d 133).

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