BRAVO v. REHMAN (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), dated October 14, 2004, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d),, and (2) as limited by his brief, from so much of an order of the same court dated January 27, 2005, as denied that branch of the plaintiff's motion which was for leave to renew and, upon, in effect, reargument, adhered to its original determination in the order dated October 14, 2004.

ORDERED that the appeal from the order dated October 14, 2004, is dismissed, on the ground that is was superseded by so much of the order dated January 27, 2005, as was, in effect, made upon reargument;  and it is further,

ORDERED that the order dated January 27, 2005, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The order dated January 27, 2005, in effect, granted that branch of the plaintiff's motion which was for reargument and adhered to the original determination in the order dated October 14, 2005 (see Schimsky v. St. John's Episcopal Hosp., 163 A.D.2d 293, 559 N.Y.S.2d 648).   The original determination in the order dated October 14, 2005, was proper.   The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  see also Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281).   In opposition, the plaintiff failed to raise a triable issue of fact.   The plaintiff relied on unaffirmed medical reports without any probative value (see Hernandez v. Taub, 19 A.D.3d 368, 796 N.Y.S.2d 169;  Holder v. Brown, 18 A.D.3d 815, 796 N.Y.S.2d 641;  Mendoza v. Whitmire, 6 A.D.3d 675, 775 N.Y.S.2d 171) and the findings contained in an affidavit from his treating physician which did not quantify any loss of range of motion (see Kinchler v. Cruz, 22 A.D.3d 808, 802 N.Y.S.2d 754;  Nelson v. Amicizia, 21 A.D.3d 1015, 803 N.Y.S.2d 87).   The mere existence of a herniated or 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 or its duration (see Kearse v. New York City Tr. Auth., supra;  Diaz v. Turner, 306 A.D.2d 241, 761 N.Y.S.2d 93).

Furthermore, the plaintiff failed to proffer competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919).

The Supreme Court properly denied leave to renew on the ground that the plaintiff “failed to offer a reasonable justification” for not submitting the new information in opposition to the original motion (Renna v. Gullo, 19 A.D.3d 472, 473, 797 N.Y.S.2d 115).