Patterson v. NY Alarm Response Corp.

Nov 13, 2007
Versions:45 A.D.3d 656
850 N.Y.S.2d 114

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants met their 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]).

In opposition, the plaintiff failed to raise a triable issue of fact. Initially, all of the plaintiff’s submissions, with the exception of the Riverside Health System records, the plaintiff’s magnetic resonance imaging (hereinafter MRI) reports, and the medical report of Dr. Alice Chen dated April 16, 2003, were without probative value since those submissions consisted of either uncertified records or unaffirmed medical reports (see Rodriguez v Cesar, 40 AD3d 731 [2007]; Mejia v DeRose, 35 AD3d 407 [2006]).

The plaintiff’s MRI reports, and Dr. Chen’s report of April 16, 2003, merely showed that as of those dates, the plaintiff had disc herniations at C3-4, C5-6, L5-S1, disc protrusions at L4-5 and C2-3, disc bulges at C6-7 and L3-4, and cervical radiculitis at C5-6. The mere existence of a herniated or bulging disc, and even 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 disc injury and its duration (see Mejia v DeRose, 35 AD3d 407 [2006]; Yakubov v CG Trans Corp., 30 AD3d 509 [2006]; Cerisier v Thibiu, 29 AD3d 507 [2006]; Bravo v Rehman, 28 AD3d 694 [2006]; Kearse v New York City Tr. Auth., 16 AD3d 45 [2005]; Diaz v Turner, 306 AD2d 241 [2003]; see also Furrs v Griffith, 43 AD3d 389 [2007]).

Schmidt, J.P., Spolzino, Skelos, Lifson and McCarthy, JJ., concur.