Casimir v. Bailey

• Decision Date: 23 February 2010
• Citation: 70 A.D.3d 994,896 N.Y.S.2d 122,2010 N.Y. Slip Op. 01612
• Parties: Jean CASIMIR, respondent,v.Trevor BAILEY, appellant.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 994

896 N.Y.S.2d 122

2010 N.Y. Slip Op. 01612

Jean CASIMIR, respondent,

v.Trevor BAILEY, appellant.

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

Feb. 23, 2010.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Thomas Torto [Jason Levine], of counsel), for appellant.Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), for respondent.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Starkey, J.), entered July 13, 2009, which denied his 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).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The defendant met his prima facie burden of showing that the plaintiff did not sustain 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, 350–351, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's medical experts, Dr. Raj Tolat and Dr. Andrew Davy, failed to address the findings of the defendant's radiologist, who concluded that the bulging and herniated discs observed in the plaintiff's cervical and lumbar spine magnetic resonance imaging films were degenerative in nature and unrelated to the subject accident. Thus, the conclusions of the plaintiff's experts that the injuries and limitations noted during their respective examinations were the result of the subject accident were speculative ( see Nicholson v. Allen, 62 A.D.3d 766, 879 N.Y.S.2d 164; Ferebee v. Sheika, 58 A.D.3d 675, 676, 873 N.Y.S.2d 93; Johnson v. Berger, 56 A.D.3d 725, 867 N.Y.S.2d 919; Ciordia v. Luchian, 54 A.D.3d 708, 864 N.Y.S.2d 74).

Furthermore, the affirmed magnetic resonance imaging reports of Dr. Robert Diamond, and the EMG report of Dr. Tolat, merely revealed the existence of disc bulges and disc herniations in the plaintiff's cervical and lumbar spine and radiculopathy. The mere existence of a herniated or bulging disc or radiculopathy is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration ( see Rivera v. Bushwick Ridgewood Props., Inc., 63 A.D.3d 712, 880 N.Y.S.2d 149; Niles v. Lam Pakie Ho, 61 A.D.3d 657, 877 N.Y.S.2d 139; Pompey v. Carney, 59 A.D.3d 416, 872 N.Y.S.2d 541). Such evidence was clearly lacking in opposition to the defendant's motion. The deposition testimony of the plaintiff was insufficient to...