Hernandez v. Taub

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated July 1, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The plaintiffs hospital emergency room records, and the affirmed medical reports of the defendant’s examining neurologist and orthopedist indicating that the plaintiff had completely recovered from his injuries and was neither impaired nor disabled, as well as the affirmation of a radiologist indicating that MRIs of the plaintiffs spine had shown only degenerative conditions, sufficiently established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiffs opposition consisted, inter alia, of computerized range of motion and sensory nerve conduction testing, únaffirmed medical reports which were without probative value (see Grasso v Angerami, 79 NY2d 813, 814 [1991]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]), and the affidavit of a chiropractor which failed to explain a 21/2-year gap in treatment (see Jimenez v Kambli, 272 AD2d 581, 582 [2000]; Smith v Askew, 264 AD2d 834 [1999]). Moreover, the mere claim of a disc herniation, without more, is insufficient to show the existence of a serious injury (see Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 369 [2005]; Guzman v Michael Mgt., 266 AD2d 508, 509 [1999]). Accordingly, the plaintiff failed to raise a triable issue of fact, and the defendant’s motion for summary judgment dismissing the complaint was properly granted. Krausman, J.P., Crane, Rivera and Fisher, JJ., concur.