RUDAS v. Milagros Lazo, appellant.

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

Homero A. RUDAS, et al., respondents, et al., plaintiff, v. James PETSCHAUER, et al., defendants, Milagros Lazo, appellant.

Decided: August 02, 2004

FRED T. SANTUCCI, J.P., HOWARD MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Hobbes & Tonetti (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant Milagros Lazo appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated August 20, 2003, which denied her motion for summary dismissing the complaint insofar as asserted against her by the plaintiffs Homero A. Rudas and Jason Pinzon 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, on the law, with costs, the motion is granted, the complaint insofar as asserted against the defendant Milagros Lazo by the plaintiffs Homero A. Rudas and Jason Pinzon is dismissed, and the action against the remaining defendants is severed.

The defendant Milagros Lazo made a prima facie showing that the plaintiffs Homero A. Rudas and Jason Pinzon did not sustain serious injuries 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).   Contrary to the arguments of Rudas and Pinzon, the mere existence of a bulging or herniated disc does not establish a serious injury in the absence of objective evidence of a related disability or restriction (see Duldulao v. City of New York, 284 A.D.2d 296, 297, 725 N.Y.S.2d 380;  Foley v. Karvelis, 276 A.D.2d 666, 667, 714 N.Y.S.2d 337;  Guzman v. Michael Mgt., 266 A.D.2d 508, 509, 698 N.Y.S.2d 719).   Moreover, a plaintiff's subjective complaints of pain are insufficient to establish a serious injury (see Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Barrett v. Howland, 202 A.D.2d 383, 384, 608 N.Y.S.2d 681;  LeBrun v. Joyner, 195 A.D.2d 502, 600 N.Y.S.2d 262).

In addition, Rudas and Pinzon failed to submit any competent medical evidence to show that they were unable to perform substantially all of their daily activities for not less than 90 of the first 180 days following the subject accident as a result of the accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133;  Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 708 N.Y.S.2d 469;  Greene v. Miranda, 272 A.D.2d 441, 442, 708 N.Y.S.2d 310;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  Bennett v. Reed, 263 A.D.2d 800, 801, 693 N.Y.S.2d 738;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499, 682 N.Y.S.2d 406).

Accordingly, the appellant was entitled to summary judgment dismissing the complaint insofar as asserted against her by Rudas and Pinzon.

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