Hargrove v. New York City Transit Authority

Mar 18, 2008
Versions:49 A.D.3d 692
854 N.Y.2d 182

The Supreme Court properly determined that the defendants satisfied their respective prima facie burdens on their separate motions for summary judgment by 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on various unaffirmed and unsworn medical reports in opposing the defendants’ motions, all of which were without any probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747, 748 [2007]; Nociforo v Penna, 42 AD3d 514, 515 [2007]; see also Grasso v Angerami, 79 NY2d 813 [1991]; Pagano v Kingsbury, 182 AD2d 268 [1992]). The affirmation of Dr. Arden Kaisman, one of the plaintiff‘s physicians, also was insufficient to raise a triable issue of fact since Dr. Kaisman relied on an unsworn report of another physician in reaching his conclusions (see Malave v Basikov, 45 AD3d 539, 540 [2007]; Govori v Agate Corp., 44 AD3d 821 [2007]; Verette v Zia, 44 AD3d at 748; Furrs v Griffith, 43 AD3d 389, 390 [2007]; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [1995]).

The plaintiff‘s magnetic resonance imaging reports merely showed that as of August 2004 the plaintiff had, among other things, a bulging disc at L5-S1. 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 injury and its duration (see Shvartsman v Vildman, 47 AD3d 700 [2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Tobias v Chupenko, 41 AD3d 583, 584 [2007]; Mejia v DeRose, 35 AD3d 407, 407-408 [2006]). Further, the plaintiff‘s self-serving affidavit was insufficient to raise a triable issue of fact, as there was no objective medical evidence in support of it (see Shvartsman v Vildman, 47 AD3d 700 [2008]; Tobias v Chupenko, 41 AD3d at 584).

The plaintiff‘s remaining admissible medical submissions were insufficient to establish that he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]). Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.