Bernabel v. Perullo

• Decision Date: 09 December 2002
• Citation: 300 A.D.2d 330,751 N.Y.S.2d 314
• Court: New York Supreme Court — Appellate Division
• Parties: JUAN BERNABEL, Respondent,<BR>v.<BR>MICHELLE PERULLO et al., Appellants.

300 A.D.2d 330

751 N.Y.S.2d 314

JUAN BERNABEL, Respondent,

v.MICHELLE PERULLO et al., Appellants.

Decided December 9, 2002.

Florio, J.P., O'Brien, Friedmann, Adams and Crane, JJ., concur.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.

"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" (Monette v Keller, 281 AD2d 523, 523-524; see Duldulao v City of New York, 284 AD2d 296, 297). In this case, the affirmed medical report submitted by the defendants' orthopedic expert found "[n]ormal range of motion of the cervical spine in all directions" despite a magnetic resonance imaging report (hereinafter MRI) showing a disc herniation at the C5-6 level and a disc bulge at the C3-4 level. Moreover, despite an MRI report regarding the plaintiff's lumbosacral spine which indicated a disc bulge at L5-S1, the expert found negative bilateral straight leg raising in both the sitting and supine positions. This evidence was sufficient to establish, prima facie, that the plaintiff did not sustain a serious injury as a result of the accident (see Duldulao v City of New York, supra).

The medical evidence submitted by the plaintiff in opposition to the motion was not in proper evidentiary form and thus did not raise a triable issue of fact (cf. Pagano v Kingsbury, 182 AD2d 268, 270).