Figueroa v. Westbury Trans, Inc.

304 A.D.2d 614, 757 N.Y.S.2d 756

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated April 1, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

In support of their motion, the defendants submitted the affirmed medical reports of their examining orthopedist and neurologist, which stated that, upon examination, both plaintiffs had full range of motion in the cervical, thoracic, and lumbosacral spines, and each plaintiff’s neurological examination indicated that his condition was normal. This proof was sufficient to establish a prima facie case that neither plaintiff sustained a serious injury as a result of the accident despite evidence of bulging and herniated discs (see Elfiky v Harris, 301 AD2d 624 [2003]; Fauk v Jenkins, 301 AD2d 564 [2003]; Duldulao v City of New York, 284 AD2d 296, 297 [2001]).

In opposition to the motion, the plaintiffs submitted the affirmations of a physician, which improperly relied upon the unsworn medical reports of another physician (see Rozengauz v Lok Wing Ha, 280 AD2d 534, 535 [2001]; Decayette v Kreger Truck Renting, 260 AD2d 342, 343 [1999]; Merisca v Alford, 243 AD2d 613, 614 [1997]). Those affirmations failed to provide evidence of the extent or degree of the plaintiffs’ physical limitations and their duration (see Barbeito v Kesev Taxi, 281 AD2d 379, 380 [2001]; Zuckerman v Karagjozi, 247 AD2d 536 [1998]; Beckett v Conte, 176 AD2d 774 [1991]) or a qualitative assessment of the plaintiffs’ conditions (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Florio, J.P., S. Miller, Townes and Mastro, JJ., concur.