Solangie Rojas, etc., Plaintiff–Appellant, v. DADS NATIONAL ENTERPRISES INC (2018)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about June 8, 2017, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing plaintiff Solangie Rojas's complaint based on her inability to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law by submitting evidence showing that plaintiff's claimed injuries were not serious within the meaning of Insurance Law § 5102(d).  Defendants submitted the affirmed reports of their respective expert physicians, each of whom documented normal range of motion, diagnosed plaintiff with resolved strains/sprains of the spine, and opined that there was no objective evidence of serious injury (see e.g. Cattouse v. Smith, 146 A.D.3d 670, 672, 45 N.Y.S.3d 453 [1st Dept. 2017] ).

In opposition, plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury, rather than a minor injury.  Plaintiff's chiropractic and physical therapy records were neither sworn nor certified, and the motion court properly declined to consider them (see Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692 [2d Dept. 1992] ).  In any event, the records contain no MRI or other objective evidence of injury (see Thomas v. City of New York, 99 A.D.3d 580, 953 N.Y.S.2d 15 [1st Dept. 2012], lv denied 22 N.Y.3d 857, 2013 WL 6500630 [2013] ), and document only four months of therapy following the accident (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]; Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept. 2013] ).  Moreover, plaintiff resumed physical activities and participation in her gymnastics class.

We have considered plaintiff's remaining contentions and find them unavailing.