FINNEGAN v. GABRIEL (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dye, J.), dated March 24, 2003, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmation of the plaintiff's physician submitted in opposition to the defendants' motion was insufficient to raise a triable issue of fact.   The physician failed to explain a gap of 1 1/2 years in the plaintiff's treatment, did not account for injuries related to the plaintiff's subsequent motor vehicle accident, failed to identify the objective tests he used to determine the limitations in the plaintiff's range of motion, and relied on an unsworn magnetic resonance imaging report (see Allyn v. Hanley, 2 A.D.3d 470, 767 N.Y.S.2d 885;  Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405;  Kauderer v. Penta, 261 A.D.2d 365, 366, 689 N.Y.S.2d 190).

Accordingly, the defendants were properly granted summary judgment dismissing the complaint.

The plaintiff's remaining contention is without merit.