LaFERLITA v. SEAGULL 2000 INC

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

Frank LaFERLITA, et al., respondents, v. SEAGULL 2000, INC., et al., appellants.

Decided: September 23, 2008

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, WILLIAM E. McCARTHY, and CHERYL E. CHAMBERS, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel), for appellants. Reingold & Tucker, Brooklyn, N.Y. (Abraham Reingold of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Schack, J.), dated September 4, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Frank LaFerlita 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 Supreme Court correctly determined that the defendants met their prima facie burden of showing that the plaintiff Frank LaFerlita (hereinafter the injured 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).   The Supreme Court erred, however, in concluding that the plaintiffs' submissions raised a triable issue of fact.   The report of Dr. Mark Cadden, one of the injured plaintiff's chiropractors, was not competent evidence since it is not sworn before a notary (see Rabolt v. Joohyun Park, 50 A.D.3d 995, 858 N.Y.S.2d 197;  Casas v. Montero, 48 A.D.3d 728, 853 N.Y.S.2d 358;  Santoro v. Daniel, 276 A.D.2d 478, 713 N.Y.S.2d 699).   The affidavit of Dr. Richard Hurwitz, another of the injured plaintiff's chiropractors, merely noted that he examined the injured plaintiff on July 6, 2007.   While Dr. Hurwitz noted that the injured plaintiff had range-of-motion limitations in his cervical and lumbar spine based on a recent examination, neither he nor the plaintiffs proffered competent medical evidence that showed range-of-motion limitations in the injured plaintiff's spine that were contemporaneous with the subject accident (see D'Onofrio v. Floton, Inc., 45 A.D.3d 525, 845 N.Y.S.2d 421;  see also Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408).

 The affidavit of Dr. Harold S. Parnes, the injured plaintiff's treating radiologist, along with his magnetic resonance imaging reports, merely revealed that as of February 2004 and March 2004, the injured plaintiff had certain bulging and herniated discs.   The mere existence of bulging or herniated discs 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 injuries and their duration (see Siegel v. Sumaliyev, 46 A.D.3d 666, 846 N.Y.S.2d 583;  Yakubov v. CG Trans Corp., 30 A.D.3d 509, 510, 817 N.Y.S.2d 353;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49, 789 N.Y.S.2d 281).   The affidavit of the injured plaintiff failed to raise a triable issue of fact (see Casas v. Montero, 48 A.D.3d 728, 853 N.Y.S.2d 358;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613).

Moreover, neither the plaintiffs nor Dr. Hurwitz adequately explained the gap in the injured plaintiff's treatment between February 11, 2005, when he was last treated by Dr. Cadden, and his most recent examination on July 6, 2007, by Dr. Hurwitz (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Berktas v. McMillian, 40 A.D.3d 563, 564, 835 N.Y.S.2d 388;  Waring v. Guirguis, 39 A.D.3d 741, 742, 834 N.Y.S.2d 290).

The plaintiffs also failed to submit competent medical evidence that the injured plaintiff was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).

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