Opinion
2004-504 K C.
Decided February 2, 2005.
Appeal by defendant Joseph Rizzo from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered March 30, 2004, as denied his motion for summary judgment.
Order insofar as appealed from reversed without costs, motion for summary judgment by defendant Rizzo granted and, upon searching the record, cross motion for summary judgment by third-party defendant Volotsenko granted.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
The affirmed medical reports submitted by defendant made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). They stated that plaintiff had cervical and lumbar injuries that were resolved and that he had no neurological disability. This shifted the burden to plaintiff to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955).
In the case at bar, plaintiff unsuccessfully opposed the motion. Plaintiff's doctor's qualitative assessment of plaintiff's physical limitation was not supported by objective medical proof which compared the limitations to the normal function, purpose and use of the affected area ( Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). Moreover, the plaintiff failed to submit medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in his cervical spine ( see Nemchyonok v. Peng Liu Ying, 2 AD3d 421). The mere existence of a herniated disc does not establish a serious injury in the absence of objective evidence of a related disability or restriction ( Salawudeen v. Barrone, 11 AD3d 444; Rudas v. Petschauer, 10 AD3d 357). Furthermore, there was no explanation for the 7-1/2 year gap between plaintiff's doctor's initial treatment and plaintiff's doctor's recent examination ( Francis v. Christopher, 302 AD2d 425).
Finally, it is noted that an appellate court may search the record and grant summary judgment in favor of a party even in the absence of an appeal by that party with respect to a cause of action or issue that is the subject of the motion before the court ( Dunham v. Hilco Constr. Co., 89 NY2d 425; Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106; Urias v. Orange County Agric. Socy., 7 AD3d 515). In the case at bar, third-party defendant Volotsenko did not file a notice of appeal from the denial of his cross motion. A search of the record reveals that the issue is identical in regard to this non-appealing third-party defendant and, thus, summary judgment should be granted in his favor as well.
Pesce, P.J., and Golia, J., concur.
Rios, J., dissents in a separate memorandum.
I agree with the majority that the mere presence of a herniated disc is insufficient to establish a serious injury ( see Toure v. Avis Rent a Car Syst., 98 NY2d 345); however where objective medical evidence exists, such as an MRI, which we have here, it can constitute a serious injury ( see Durham v. New York E. Travel Inc., 2 AD3d 1113). Here the plaintiff successfully opposed the motion for summary judgment by establishing through the medical reports of plaintiff's doctor, that the herniated disc was caused by the subject accident, with a documented loss of range of motion.
In my view, the plaintiff's medical evidence, coupled with the MRI showing of a herniated disc, raises a triable question of fact.