Mora v. Riddick

Jan 5, 2010
Versions:69 A.D.3d 591
893 N.Y.2d 149

The Supreme Court properly determined that the defendants met their respective prima facie burdens 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. Initially, the medical reports submitted by Dr. Lauren Stimler-Levy, the plaintiff‘s treating physician, were unaffirmed and, thus, insufficient to raise a triable issue of fact (see Grasso v Angerami, 79 NY2d 813 [1991]; Shaji v City of New Rochelle, 66 AD3d 760 [2009]; Maffei v Santiago, 63 AD3d 1011 [2009]; Niles v Lam Pakie Ho, 61 AD3d 657 [2009]; Uribe-Zapata v Capallan, 54 AD3d 936 [2008]; Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]; Pagano v Kingsbury, 182 AD2d 268 [1992]). Additionally, while the plaintiff submitted medical evidence that he suffered from, inter alia, herniated and bulging discs, as well as tendon tears, those findings are not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injuries and their duration (see Ciancio v Nolan, 65 AD3d 1273 [2009]; Magid v Lincoln Servs. Corp., 60 AD3d 1008, 1009 [2009]; Washington v Mendoza, 57 AD3d 972 [2008]; Cornelius v Cintas Corp., 50 AD3d 1085, 1087 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]).

The plaintiff also failed to set forth any competent medical evidence to raise a triable issue of fact as to whether he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary daily activities for 90 of the 180 days following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569 [2000]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.