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Mora v. Riddick

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 5, 2010

ANGEL MORA, APPELLANT,
v.
BARBARA J. RIDDICK, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated September 15, 2008, which granted the motion of the defendant Barbara J. Riddick, and that branch of the cross motion of the defendants County of Nassau and Daniel R. Clarke which were for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J. P., ANITA R. FLORIO, RUTH C. BALKIN, ARIEL E. BELEN, LEONARD B. AUSTIN, JJ.

(Index No. 16594/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs payable to the defendant Barbara J. Riddick.

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; Gaddy v Eyler, 79 NY2d 955, 956-957). 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; Shaji v City of New Rochelle, 66 AD3d 760; Maffei v Santiago, 63 AD3d 1011; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268). 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; Magid v Lincoln Servs. Corp., 60 AD3d 1008, 1009; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700).

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).

SKELOS, J. P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.

20100105

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