SEEBARAN v. MENDONCA CM (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dollard, J.), dated March 30, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant met his prima facie burden of showing 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).

In opposition, the plaintiff failed to raise a triable issue of fact.   The reports from Liberty Advanced Medical were without any probative value since they were unaffirmed (see 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, 840 N.Y.S.2d 396;  see also Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   The same holds true for the magnetic resonance imaging report of the plaintiff's left shoulder by Dr. Mark Freilich.   In addition, the plaintiff's records from Jamaica Hospital were without any probative value since they were uncertified (see Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722).

The affirmed medical report of the plaintiff's treating orthopedic surgeon was also without probative value, and thus failed to raise a triable issue of fact, since he clearly relied on the unsworn report of Dr. Freilich in arriving at his conclusions (see Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415;  Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Furrs v. Griffith, 43 A.D.3d 389, 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).   Further, neither the plaintiff nor his treating orthopedic surgeon adequately explained the lengthy gap in the plaintiff's treatment evident in the record (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Wei-San Hsu v. Briscoe Protective Sys., Inc., 43 A.D.3d 916, 842 N.Y.S.2d 455;  Bestman v. Seymour, 41 A.D.3d 629, 838 N.Y.S.2d 645;  Albano v. Onolfo, 36 A.D.3d 728, 830 N.Y.S.2d 205).

Finally, the plaintiff's affidavit was insufficient, on its own, to raise a triable issue of fact (see Rashid v. Estevez, 47 A.D.3d 786, 850 N.Y.S.2d 181;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Duke v. Saurelis, 41 A.D.3d 770, 840 N.Y.S.2d 88).