In Sharma v. Diaz, 2008 NY Slip Op 01130, AD Index 2007-05350, Kings Co. Index 27745/04, a case involving a motor vehicle accident, plaintiff claimed to have sustained neck and lower back injuries, including herniated and bulging discs with radiculopathy. The defendant moved for summary judgment asserting the plaintiff did not sustain a serious injury pursuant New York Insurance Law §5102(d). As part of his motion, the defendant relied upon the findings of plaintiff’s treating physician, who examined the plaintiff within three months of the accident and found that plaintiff possessed full range of motion in the cervical and lumbar regions of his spine. Despite this, the trial court denied defendant’s motion finding that the defendant failed to meet his prima facie burden that the plaintiff did not sustain a serious injury.

In reversing the trial court and granting defendant’s motion for summary judgment, the Appellate Division – Second Department found that the defendant had established his entitlement for summary judgment. Since the plaintiff failed to provide any medical evidence to counter defendant’s motion, the appellate court deemed the aforemention findings of plaintiff’s own treating physician fatal to his claim. Furthermore, the court held that the mere existence of disc herniations and bulges with radiculopathy, without objective evidence demonstrating the extent of physical limitation, insufficient to prove serious injury.

http://www.nycourts.gov/reporter/3dseries/2008/2008_01130.htm