EARL v. CHAPPLE (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated November 21, 2005, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs.

The defendants satisfied their respective prima facie burdens of demonstrating 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 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 warranting a denial of summary judgment (see Franchini v. Palmieri, 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282;  Marietta v. Scelzo, 29 A.D.3d 539, 815 N.Y.S.2d 137).   The report of the plaintiff's treating chiropractor was insufficient to raise a triable issue of fact as it was not based upon a recent examination of the plaintiff (see D'Alba v. Yong-Ae Choi, 33 A.D.3d 650, 823 N.Y.S.2d 423;  Gomez v. Epstein, 29 A.D.3d 950, 951, 818 N.Y.S.2d 101;   Legendre v. Bao, 29 A.D.3d 645, 646, 816 N.Y.S.2d 495;  Cerisier v. Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140).   The affirmed report of the plaintiff's treating neurologist, Dr. Hausknecht, was also insufficient as it failed to demonstrate that limitations in the plaintiff's ranges of motion, observed in July 2005, were contemporaneous with the accident (see Felix v. New York City Tr. Auth., 32 A.D.3d 527, 528, 819 N.Y.S.2d 835;  Ramirez v. Parache, 31 A.D.3d 415, 416, 818 N.Y.S.2d 238;  Bell v. Rameau, 29 A.D.3d 839, 814 N.Y.S.2d 534;  Ranzie v. Abdul-Massih, 28 A.D.3d 447, 448, 813 N.Y.S.2d 473).   In any event, Dr. Hausknecht's report relied upon unsworn reports of other physicians (see Magarin v. Kropf, 24 A.D.3d 733, 734, 807 N.Y.S.2d 398;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   The affirmed report of the plaintiff's radiologist, Dr. Shapiro, was insufficient as it did not demonstrate that the physical limitations alleged by the plaintiff resulted from the disc injury observed or establish the duration of the injury (see Yakubov v. CG Trans. Corp., 30 A.D.3d 509, 510, 817 N.Y.S.2d 353;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49, 789 N.Y.S.2d 281;  Diaz v. Turner, 306 A.D.2d 241, 242, 761 N.Y.S.2d 93).

The plaintiff's remaining contentions are without merit.