Stevens v. Sampson

• Decision Date: 13 April 2010
• Citation: 72 A.D.3d 793,898 N.Y.S.2d 657
• Parties: Nicole STEVENS, appellant, v. Alfonso SAMPSON, respondent.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 657

72 A.D.3d 793

Nicole STEVENS, appellant,

v.Alfonso SAMPSON, respondent.

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

April 13, 2010.

Dominick W. Lavelle, Mineola, N.Y., for appellant.

Robert P. Tusa, Lake Success, N.Y. (Sweetbaum & Sweetbaum [Marshall D. Sweetbaum] of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, KingsCounty (Vaughan, J.), dated April 29, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The Supreme Court properly concluded that 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, 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. Initially, the medical report of Dr. Serge Delaleu was insufficient to raise a triable issue of fact since it was unaffirmed ( see Haber v. Ullah, 69 A.D.3d 796, 892 N.Y.S.2d 531; Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114; Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396; see also Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692). The affirmed medical reports of Dr. Aric Hausknecht, the plaintiff's treating neurologist, were also insufficient to raise a triable issue of fact. While Dr. Hausknecht noted significant limitations in the range of motion of the plaintiff's cervical spine on recent examinations, neither he nor the plaintiff proffered competent medical evidence that revealed the existence of significant limitations in the cervical region of her spine that were contemporaneous with the subject accident. Thus, the plaintiff did not raise a triable issue of fact as to whether she sustained aserious injury under the permanent consequential limitation of use or the significant limitation of use category of Insurance Law § 5102(d) ( see 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; Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408).

The affirmation of Dr. Ayoob Khodadadi, with annexed magnetic resonance imaging reports, merely revealed the existence of herniated discs in the cervical region of the plaintiff's spine and a bulging disc in the lumbar region of the spine. 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, as well as its duration ( see Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481; Chanda v. Varughese, 67 A.D.3d 947, 890 N.Y.S.2d 88; Niles v. Lam Pakie Ho, 61 A.D.3d 657, 877 N.Y.S.2d 139; Sealy v. Riteway-1, Inc., 54 A.D.3d 1018, 865 N.Y.S.2d 129; Kilakos v. Mascera, 53 A.D.3d 527, 862 N.Y.S.2d 529; Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49, 789 N.Y.S.2d 281). The plaintiff's...