PERDOMO v. SCOTT

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

Eulalio PERDOMO, et al., respondents, et al., plaintiff, v. Anthony M. SCOTT, et al., appellants.

Decided: April 29, 2008

PETER B. SKELOS, J.P., FRED T. SANTUCCI, JOSEPH COVELLO, WILLIAM E. McCARTHY, and CHERYL E. CHAMBERS, JJ. Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellants. Steven Cohn, P.C., Carle Place, N.Y. (Mitchell Goldklang of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated April 17, 2007, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Eulalio Perdomo and Maribel Navarro on the ground that neither of those plaintiffs sustained 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 one bill of costs to the appellants payable by the respondents, and those branches of the appellants' motion which were for summary judgment dismissing the complaint insofar as asserted by the respondents are granted.

The defendants met their prima facie burden of showing that neither the plaintiff Eulalio Perdomo nor the plaintiff Maribel Navarro sustained 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, 956-57, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition, Perdomo and Navarro failed to raise a triable issue of fact.

Perdomo and Navarro relied upon medical reports from their treating chiropractor.   However, those reports were not competent evidence because they were not in affidavit form (see CPLR 2106;  Coburn v. Samuel, 44 A.D.3d 698, 843 N.Y.S.2d 659;  Laguerre v. Chavarria, 41 A.D.3d 437, 837 N.Y.S.2d 716;  Kunz v. Gleeson, 9 A.D.3d 480, 481, 781 N.Y.S.2d 50).   Moreover, those reports failed to show any range of motion limitations in Perdomo's spine or left shoulder, or in Navarro's spine, contemporaneous with the subject accident (see D'Onofrio v. Floton, Inc., 45 A.D.3d 525, 845 N.Y.S.2d 421;  Morales v. Daves, 43 A.D.3d 1118, 841 N.Y.S.2d 793;  Rodriguez v. Cesar, 40 A.D.3d 731, 835 N.Y.S.2d 438;  Borgella v. D & L Taxi Corp., 38 A.D.3d 701, 834 N.Y.S.2d 199).

Perdomo and Navarro also relied upon affirmed magnetic resonance imaging reports of Perdomo's lumbar spine and Navarro's cervical and lumbar spine.   While the radiologists who authored those reports observed bulging discs, the mere existence of a bulging disc 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 injury and its duration (see Sharma v. Diaz, 48 A.D.3d 442, 850 N.Y.S.2d 634;  Mejia v. DeRose, 35 A.D.3d 407, 407-408, 825 N.Y.S.2d 722;  Yakubov v. CG Trans Corp., 30 A.D.3d 509, 510, 817 N.Y.S.2d 353;  Cerisier v. Thibiu, 29 A.D.3d 507, 508, 815 N.Y.S.2d 140;  Bravo v. Rehman, 28 A.D.3d 694, 695, 814 N.Y.S.2d 225).

Finally, Perdomo and Navarro failed to proffer competent medical evidence demonstrating that either of them sustained a medically-determined injury of a nonpermanent nature which prevented them, for 90 of the 180 days following the subject accident, from performing their usual and customary activities (see Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 536, 846 N.Y.S.2d 613;   Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133).

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