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Hargrove v. New York City Transit Authority

49 A.D.3d 692 Court N.Y. App. Div. Decision date 2008-03-18 English

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p. 692
Otha Charles Hargrove, Appellant, v New York City Transit Authority et al., Respondents.
[854 NYS2d 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 plaintiffs 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 plaintiffs magnetic resonance imaging reports merely showed that as of August 2004 the plaintiff had, among other

p. 693
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 plaintiffs 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 plaintiffs 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.

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