Malave v. Basikov

45 A.D.3d 539, 845 N.Y.S.2d 415

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 2007
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated August 4, 2006, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants met their prima facie burden on their motion for summary judgment by establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff principally relied upon the submission of voluminous unaffirmed reports and uncertified medical records, which were without any probative value (see Rodriguez v Cesar, 40 AD3d 731, 732-733 [2007]). The affirmation of the plaintiffs treating physician also lacked any probative value since he relied on unaffirmed reports of others (see Furrs v Griffith, 43 AD3d 389 [2007]; Phillips v Zilinsky, 39 AD3d 728 [2007]; Porto v Blum, 39 AD3d 614, 615 [2007]), and failed to compare any of his own findings on range of motion to what is normal (see Nociforo v Penna, 42 AD3d 514, 515 [2007]; McNulty v Buglino, 40 AD3d 591 [2007]). Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.