Cabreja v. Morris

309 A.D.2d 536, 765 N.Y.S.2d 494, 2003 N.Y. App. Div. LEXIS 10361

Opinion

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered April 16, 2002, which, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d), unanimously affirmed, without costs.

In opposition to defendant’s prima facie showing of no serious injury, plaintiff submitted the report of his treating physician which, while denominated an affirmation, is neither affirmed (CPLR 2106) nor sworn to (see Merrill /New York Co. v Celerity Sys., 300 AD2d 206 [2002]), and thus failed to provide the requisite medical evidence of serious injury (see Grasso v Angerami, 79 NY2d 813 [1991]; Charlton v Almaraz, 278 AD2d 145 [2000]). In any event, the physical limitations described therein are neither supported by clinical findings of decreased range of motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]) nor shown to be causally related to the accident by the medical evidence of record submitted by plaintiff (see Chrisomalides v Ekow, 291 AD2d 202 [2002]). Concur— Saxe, J.P., Sullivan, Williams, Lerner and Friedman, JJ.