DEUTSCH v. TENEMPAGUAY

Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury by virtue of sustaining either a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system, within the meaning of Insurance Law § 5102 (d) ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition to the defendant's showing, the plaintiff failed to raise a triable issue of fact. The affirmation and report of the plaintiffs treating physician were insufficient to raise a triable issue of fact as to whether the plaintiff sustained an injury within those categories since the physician's conclusions were not based on a recent examination of the plaintiff ( see Amato v Fast Repair Inc., 42 AD3d 477; Ali v Mirshah, 41 AD3d 748; Mejia v DeRose, 35 AD3d 407; Elgendy v Nieradko, 307 AD2d 251). Furthermore, neither the plaintiff nor his experts proffered competent medical evidence that was even roughly contemporaneous with the subject accident showing range-of-motion limitations in his spine ( see D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731).

The submission of the plaintiffs magnetic resonance imaging reports concerning the cervical and lumbar regions of his spine were insufficient to raise a triable issue of fact. The mere existence of a herniated or bulging disc is not evidence of a serious injury where, as here, objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration is absent ( see Siegel v Sumaliyev, 46 AD3d 666; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Mejia v DeRose, 35 AD3d 407; Yakubov v CG Trans Corp., 30 AD3d 509; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241). Moreover, the self-serving affidavit of the plaintiff was insufficient to raise a triable issue of fact as to whether he sustained a serious injury under any statutory definition of the term ( see Elder v Stokes, 35 AD3d 799; Brobeck v Jolloh, 32 AD3d 526; Fisher v Williams, 289 AD2d 288).