ELFIKY v. HARRIS

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

Salem ELFIKY, et al., Respondents, et al., Plaintiff, v. Larry HARRIS, et al., Appellants.

Decided: January 27, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, SANDRA L. TOWNES and WILLIAM F. MASTRO, JJ. Wollerstein & Futoran (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants.

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Kings County (Douglass, J.), dated June 19, 2002, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Salem Elfiky and Hala Khalaf-Elfiky on the ground that the plaintiff Hala Khalaf-Elfiky did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Salem Elfiky and Hala Khalaf-Elfiky is granted, and the complaint is dismissed insofar as asserted by those plaintiffs.

 “Although a bulging or herniated disc may constitute a serious injury within the meaning of Insurance Law § 5102(d), a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration” (Duldulao v. City of New York, 284 A.D.2d 296, 297, 725 N.Y.S.2d 380).   The defendants' medical expert examined the injured plaintiff Hala Khalaf-Elfiky and stated in his affirmed report that, inter alia, she had full range of motion of the lumbosacral spine and no muscular spasm.   This proof was sufficient to establish a prima facie case that the plaintiff Hala Khalaf-Elfiky did not sustain a serious injury as a result of the accident (see Villalta v. Schechter, 273 A.D.2d 299, 300, 710 N.Y.S.2d 87).

 The medical evidence submitted in opposition to the motion was not in proper evidentiary form, and thus failed to raise a triable issue of fact (see Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).

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