Opinion
Submitted December 6, 2000.
January 16, 2001.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered February 2, 2000, which granted the plaintiff's motion for summary judgment on the issue of liability, and denied his cross 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).
Martyn, Toher, Esposito Martyn, Mineola, N.Y. (Phillip A. Jordan, Jr., of counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Garden City, N.Y. (Rona L. Platt of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, ACTING P.J., FRED T. SANTUCCI, MYRIAM J. ALTMAN, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the cross motion is granted, the motion is denied as academic, and the complaint is dismissed.
The Supreme Court erred in denying the defendant's cross 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). The affirmed medical reports of the physicians who examined the plaintiff on behalf of the defendant were sufficient to establish a prima facie case that the plaintiff did not sustain a serious injury as a result of the accident at issue. The burden therefore shifted to the plaintiff to raise a triable issue of fact that he sustained a serious injury (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).
Contrary to the conclusion of the Supreme Court, the plaintiff's opposition to the cross motion was insufficient to raise a triable issue of fact. Although the plaintiff's treating physician submitted an affidavit indicating that the plaintiff suffered from a herniated disc and bulging discs, such injuries do not alone constitute a serious injury. Rather, the plaintiff is still required to provide objective evidence of the extent or degree of physical limitations resulting from such injuries and their duration (see, Guzman v. Paul Michael Mgt., 266 A.D.2d 508; Noble v. Ackerman, 252 A.D.2d 392, 394-395). In this respect, the plaintiff's evidence was lacking, and thus, the defendant was entitled to summary judgment dismissing the complaint (see, Guzman v. Paul Michael Mgt., supra).