Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered April 1, 2009.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 10, 2010
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
The order denied defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendants' motion for summary judgment dismissing the complaint is granted.
Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident which occurred on September 21, 2006. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court denied the motion, determining that while defendants had established a prima facie showing of entitlement to judgment as a matter of law, plaintiff's submissions were sufficient to raise a triable issue of fact. This appeal by defendants ensued.
The Civil Court properly determined that defendants had met their prima facie burden of establishing that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) as a result of the subject accident and that defendants had, thus, shifted the burden to plaintiff (see Toure v Avis Rent A Car Sys., 98 NY2d 345 ; Gaddy v Eyler, 79 NY2d 955 ). However, contrary to the further determination of the Civil Court, plaintiff failed to raise a triable issue of fact as to whether he had sustained a serious injury to his cervical and lumbar spine and right knee as a result of the accident. Although defendant's examining orthopedist had listed several of plaintiff's unsworn records and unaffirmed reports among the documents submitted for her review, the orthopedist had neither relied upon nor reported the findings contained therein and, thus, these documents should not have been considered as they were not in admissible form (see Rodriguez v Huerfano, 46 AD3d 794 ; see also Grasso v Angerami, 79 NY2d 813 ; Simanovskiy v Barbaro, 72 AD3d 930 ; Lozusko v Miller, 72 AD3d 908 ). Moreover, even if the unaffirmed initial narrative report of plaintiff's treating physician were in admissible form, the doctor failed to include the numerical results of his range of motion tests or make any comparisons to normal ranges of motion (see Johnson v Tranquille, 70 AD3d 645 ; Smeja v Fuentes, 54 AD3d 326 ). While plaintiff's doctor also submitted a medical affidavit, which reported the results of the examination he had performed two years after the subject accident and noted the existence of recent limitations in plaintiff's cervical and lumbar spine and right knee, he did not report significant limitations that were contemporaneous with the subject accident (see Kreimerman v Stunis, 74 AD3d 753 ; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 ; Niles v Lam Pakie Ho, 61 AD3d 657 ).
Plaintiff's submissions also included an affirmed orthopedic report based upon an independent examination conducted approximately two months after the subject accident. The orthopedist reported full range of motion of the areas she tested, with the exception of a five-degree limitation in plaintiff's lumbar extension. The orthopedist's report failed to establish that the identified limitation in movement was of a significant nature (see Ibragimov v Hutchins, 8 AD3d 235 ). Moreover, plaintiff's treating physician did not account for the notations in plaintiff's medical records indicating that he had full ranges of motion (see Shaji v City of New Rochelle, 66 AD3d 760 ; Maffei v Santiago, 63 AD3d 1011 ). The record further indicates that plaintiff's treating physician failed to acknowledge that plaintiff had been involved in a prior motor vehicle accident in 1986, which failure rendered speculative his conclusion that plaintiff's injuries and limitations were the result of the subject accident (see Wallace v Adam Rental Transp., Inc., 68 AD3d 857 ; Su Gil Yun v Barber, 63 AD3d 1140 ; Joseph v A & H Livery, 58 AD3d 688 ). Finally, plaintiff failed to provide any competent medical evidence that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Robinson-Lewis v Grisafi, 74 AD3d 774 ; Clarke v Delacruz, 73 AD3d 965 ; Sainte-Aime v Ho, 274 AD2d 569 ). We note that plaintiff's affidavit was insufficient to raise a triable issue of fact (see Thomas v Weeks, 61 AD3d 961 ; Yakubov v CG Trans Corp., 30 AD3d 509 ).
Accordingly, the Civil Court should have granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Pesce, P.J., Golia and Steinhardt, ...