SIMMS v. APA TRUCK LEASING CORPORATION (2005)

Order, Supreme Court, Bronx County (Jerry L. Crispino, J.), entered August 5, 2003, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 In opposition to defendants' prima facie showing of no “serious injury” (Insurance Law § 5102[d] ), plaintiff submitted the report of his examining physician which, while denominated an affirmation, is neither affirmed nor sworn to (CPLR 2106;  Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76 [1991];  Charlton v. Almaraz, 278 A.D.2d 145, 718 N.Y.S.2d 52 [2000] ).   Thus, the court properly refused to consider the unsworn report.   Plaintiff's attempt to submit a corrected affirmation for the first time on appeal to this Court is improper and we decline to consider it.   In any event, the measurements of loss of range of motion described therein are not shown to be causally connected to the accident in which plaintiff allegedly sustained the loss (Chrisomalides v. Ekow, 291 A.D.2d 202, 736 N.Y.S.2d 862 [2002] ), nor does the affirmation address defendants' radiologist's findings attributing plaintiff's spinal condition to a preexisting degenerative condition (Shinn v. Catanzaro, 1 A.D.3d 195, 767 N.Y.S.2d 88 [2003] ), or how that condition may have impacted on his diagnosis (Shaw v. Looking Glass Assoc., 8 A.D.3d 100, 779 N.Y.S.2d 7 [2004] ).   Additional diagnostic statements in plaintiff's physician's report were conclusory and tailored to meet statutory requirements (Hernandez v. Lopez, 9 A.D.3d 300, 780 N.Y.S.2d 583 [2004] ).   Plaintiff's radiologist's report is also insufficient since the mere existence of a herniated disc does not per se constitute serious injury (Noble v. Ackerman, 252 A.D.2d 392, 394, 675 N.Y.S.2d 86 [1998] ), and plaintiff failed to offer any objective evidence, as is required, of the extent or degree of her alleged physical limitations and their duration, resulting from the disc injury (Arjona v. Calcano, 7 A.D.3d 279, 776 N.Y.S.2d 49 [2004] ).