MONACO v. DAVENPORT (2000)

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered March 2, 2000, as denied her motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

The injured plaintiff and his wife brought the instant action to recover damages, inter alia, for personal injuries which the injured plaintiff allegedly sustained in a two-vehicle collision involving the defendant.   Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  The Supreme Court denied the motion.   We reverse.

 The defendant established, prima facie, that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), thereby shifting the burden to the plaintiffs to submit sufficient evidence to raise a triable question of fact on that issue (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Contrary to the Supreme Court's determination, the plaintiffs failed to do so.   The affirmation of the plaintiffs' expert physician was insufficient to defeat the defendant's prima facie showing because it failed to set forth that any objective medical tests were performed to determine that the injured plaintiff suffered specifically quantified restrictions of motion in his back and neck (see, Perovich v. Liotta, 273 A.D.2d 367, 710 N.Y.S.2d 908;  Harewood v. Aiken, 273 A.D.2d 199, 710 N.Y.S.2d 82;  Decayette v. Kreger Truck Renting, 260 A.D.2d 342, 687 N.Y.S.2d 680;  Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853).   Moreover, the plaintiffs' physician improperly relied upon unsworn medical reports of other physicians in arriving at his conclusions (see, Napoli v. Cunningham, 273 A.D.2d 366, 710 N.Y.S.2d 919;  Goldin v. Lee, 275 A.D.2d 341, 712 N.Y.S.2d 154;  Diaz v. Wiggins, 271 A.D.2d 639, 707 N.Y.S.2d 870).   Therefore, the defendant's motion should have been granted.

MEMORANDUM BY THE COURT.