URIBE ZAPATA v. CAPALLAN (2008)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated January 11, 2008, which denied his motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Matilde Uribe-Zapata on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Matilde Uribe-Zapata on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

The defendant met his prima facie burden of showing that the plaintiff Matilde Uribe-Zapata (hereinafter 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-57, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

 In opposition, the plaintiff failed to raise a triable issue of fact.   The magnetic resonance imaging (hereinafter MRI) reports concerning the plaintiff's lumbar spine and right knee lacked probative value since they were unaffirmed (see Verette v. Zia, 44 A.D.3d 747, 748, 844 N.Y.S.2d 71;  see also Grasso v. Angerami, 79 N.Y.2d 813, 814-15, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692).   In addition, the affirmation of the plaintiff's treating physician lacked probative value since he relied on the unsworn MRI report concerning the lumbar spine in arriving at the plaintiff's diagnosis (see Malave v. Basikov, 45 A.D.3d 539, 540, 845 N.Y.S.2d 415;  Verette v. Zia, 44 A.D.3d at 748, 844 N.Y.S.2d 71;  Furrs v. Griffith, 43 A.D.3d 389, 841 N.Y.S.2d 594;  see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 266-67, 627 N.Y.S.2d 765).   Finally, the self-serving affidavit of the plaintiff was insufficient to show that she sustained a serious injury as a result of the subject accident (see Michel v. Blake, 52 A.D.3d 486, 486-87, 859 N.Y.S.2d 688;  Shvartsman v. Vildman, 47 A.D.3d 700, 701, 849 N.Y.S.2d 600;  Yakubov v. CG Trans Corp., 30 A.D.3d 509, 510, 817 N.Y.S.2d 353).   The plaintiff failed to proffer competent medical evidence that she sustained a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities (see Sainte-Aime v. Ho, 274 A.D.2d 569, 569-70, 712 N.Y.S.2d 133).