MATRA v. RAZA (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated October 23, 2007, which denied their 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their initial prima facie burden of demonstrating, through admissible evidence, 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, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  see also Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773).

In opposition, the plaintiff failed to raise a triable issue of fact.   The magnetic resonance imaging reports authored by Dr. Harold Tice concerning the plaintiff were not competent evidence since they were unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 814-815, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114;  Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Nociforo v. Penna, 42 A.D.3d 514, 515, 840 N.Y.S.2d 396;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692).   The affirmed medical report of Dr. Gideon Hedrych was without any probative value since he relied on the unsworn reports of others in reaching his conclusions (see Malave v. Basikov, 45 A.D.3d 539, 540, 845 N.Y.S.2d 415;  Verette v. Zia, 44 A.D.3d at 748, 844 N.Y.S.2d 71;  Furrs v. Griffith, 43 A.D.3d 389, 390, 841 N.Y.S.2d 594;  see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   Similarly, although Dr. Donald Rose was able to objectively observe the plaintiff's menisci during arthroscopic surgeries he performed on the plaintiff's knees in May and June 2006, the portion of the opinion in his report regarding proximate causation is based upon unsworn evidence and is therefore without probative value (see Navedo v. Jaime, 32 A.D.3d 788, 789, 822 N.Y.S.2d 43), particularly as Dr. Rose had earlier found full range of motion in both knees during his initial evaluation of the plaintiff in April of 2006.

The plaintiff's remaining contentions have been rendered academic by our determination.