In Cerisier v Thibiu, 2006 NY Slip Op 03526, the defendant moved for summary judgment on the basis that the plaintiff had failed to establish that he had suffered from a serious injury as a result of a motor vehicle accident.
In opposition to the motion, the plaintiff submitted an MRI which showed a bulging disc and affirmations from the plaintiff's treating physician and neurologist which were not based upon recent examinations.
The Second Department concluded that the plaintiff had failed to establish that he had sustained a serious injury within the meaning of Insurance Law s. 5102(d). The Court stated that:
The magnetic resonance images of the plaintiff's cervical and lumbar spine which showed bulging discs, did not, alone, establish a serious injury (see Kearse v New York City Tr. Auth., supra; Diaz v Turner, 306 AD2d 241; see also Hernandez v Taub, [*2]19 AD3d 368). The mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.
Accordingly, the Court granted the defendant's motion for summary judgment and dismissed the first cause of action.
I wish that the Court had set forth the content of the physicians' affirmations. It's unclear to me whether the affirmations contained no conclusions regarding the alleged physical limitations, or whether the Court is holding that any conclusions as to that issue are irrelevant since they're based on outdated physical examinations.