Pierson v. Edwards

• Decision Date: 05 October 2010
• Citation: 77 A.D.3d 642,909 N.Y.S.2d 726
• Parties: Kimberly A. PIERSON, appellant, v. Lisa B. EDWARDS, respondent.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 726

77 A.D.3d 642

Kimberly A. PIERSON, appellant,

v.Lisa B. EDWARDS, respondent.

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

Oct. 5, 2010.

McMahon, Martine & Gallagher, LLP, Brooklyn, N.Y. (Patrick W. Brophy of counsel), for appellant.

Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of counsel), for respondent.

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Galasso, J.), entered August 5, 2009, 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 her brief, from so much of an order of the same court, entered December 17, 2009, as, upon reargument and renewal, adhered to the original determination.

ORDERED that the appeal from the order entered August 5, 2009, is dismissed, as that order was superseded by the order entered December 17, 2009, made upon renewal and reargument; and it is further,

ORDERED that the order entered December 17, 2009, is affirmed insofar as appealed from; and it is further,

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

The Supreme Court correctly determined that the defendant met her prima facie burden of demonstrating 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, 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. In this regard, the magnetic resonance imaging (hereinafter MRI) reports dated October 9, 2003, and September 16, 2003, were unaffirmed and, thus, were not in admissible form ( see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;Resek v. Morreale, 74 A.D.3d 1043, 903 N.Y.S.2d 120; Lozusko v. Miller, 72 A.D.3d 908, 899 N.Y.S.2d 358). Additionally, although the MRI reports of the cervical region of the plaintiff's spine, dated January 31, 2005, and of the lumbar region of her spine, dated May 16, 2005, the contents of which were set forth in the affirmed medical report of the defendant's examining neurologist ( see Lozusko v. Miller, 72 A.D.3d 908, 899 N.Y.S.2d 358; Zarate v. McDonald, 31 A.D.3d 632, 819 N.Y.S.2d 288; Ayzen v. Melendez, 299 A.D.2d 381, 749 N.Y.S.2d 445), indicated that the plaintiff had sustained, among other things, disc bulges in the cervical and lumbar regions of her spine, the mere existence of bulging discs, in the absence of objective evidence as to the extent of the alleged physical limitations resulting from the injuries and their duration, is not evidence of serious injury ( see Lozusko v. Miller, 72 A.D.3d 908, 899 N.Y.S.2d 358; Shvartsman v. Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600; Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114; Tobias v. Chupenko, 41 A.D.3d 583, 837 N.Y.S.2d 334; Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722).

The affirmation of the plaintiff's treating chiropractor did not constitute competent evidence to oppose the motion for summary judgment because it was not in affidavit form ( see CPLR 2106; see also Perdomo v. Scott, 50 A.D.3d 1115, 857 N.Y.S.2d 212; Pichardo v. Blum, 267 A.D.2d 441, 700 N.Y.S.2d 863; Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201). Moreover, the affidavit of that chiropractor submitted upon renewal failed to quantify any limitations in the plaintiff'sranges of motion revealed by objective medical testing and, thus, was inadequate to defeat summary judgment ( see Robinson-Lewis v. Grisafi, 74 A.D.3d 774, 775, 902 N.Y.S.2d 170; Ortiz v. Ianina Taxi Servs., Inc., 73 A.D.3d 721, 722, 900 N.Y.S.2d 391).

Likewise, the affirmed medical report of the plaintiff's examining orthopedic surgeon failed to raise a triable issue of fact, since that physician did not examine the plaintiff for the first time until almost 4 1/2 years after the subject accident. While that report set forth range-of-motion findings from the recent examination, neither the orthopedic surgeon nor the plaintiff proffered competent medical evidence that revealed the existence of significant limitations which were contemporaneous with the subject accident ( see Resek v. Morreale, 74 A.D.3d 1043, 903 N.Y.S.2d 120; Delarosa v. McLedo, 74 A.D.3d 1012, 904 N.Y.S.2d 715; Vilomar v. Castillo, 73 A.D.3d 758, 901 N.Y.S.2d 651; Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481; Taylor v. Flaherty, 65 A.D.3d 1328, 887 N.Y.S.2d 144; Fung v. Uddin, 60 A.D.3d 992, 876 N.Y.S.2d 469; Gould v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567; Kuchero v. Tabachnikov, 54 A.D.3d 729, 864 N.Y.S.2d 459; Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854...