MARZIOTTO v. (and a third-party action). (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated February 3, 2006, as granted that branch of the cross motion of the defendant Peter J. Striano which was for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff Marlene Marziotto did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Peter J. Striano established, prima facie, that the plaintiff Marlene Marziotto (hereinafter the injured 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Contrary to the plaintiffs' contentions on appeal, they failed to raise a triable issue of fact in opposition.   The respective affirmations, with annexed submissions, of the injured plaintiff's treating orthopedist and physician were insufficient to raise a triable issue of fact since the findings contained therein were not based on a recent examination of the injured plaintiff (see Gomez v. Epstein, 29 A.D.3d 950, 951, 818 N.Y.S.2d 101;  Legendre v. Bao, 29 A.D.3d 645, 816 N.Y.S.2d 495;  Cerisier v. Thibiu, 29 A.D.3d 507, 815 N.Y.S.2d 140;  Tudisco v. James, 28 A.D.3d 536, 537, 813 N.Y.S.2d 482;  Barzey v. Clarke, 27 A.D.3d 600, 815 N.Y.S.2d 106;  Murray v. Hartford, 23 A.D.3d 629, 804 N.Y.S.2d 416;  Farozes v. Kamran, 22 A.D.3d 458, 802 N.Y.S.2d 706).   Moreover, in his affirmation, the injured plaintiff's treating physician admittedly relied on the unsworn magnetic resonance imaging report of another physician in reaching his diagnosis of the injured plaintiff therein, thus rendering his affirmation without probative value in opposing Striano's cross motion (see Elder v. Stokes, 35 A.D.3d 799, 828 N.Y.S.2d 138;  Felix v. New York City Tr. Auth., 32 A.D.3d 527, 819 N.Y.S.2d 835;  Vallejo v. Builders for Family Youth, Diocese of Brooklyn, Inc., 18 A.D.3d 741, 742, 795 N.Y.S.2d 712;  Mahoney v. Zerillo, 6 A.D.3d 403, 774 N.Y.S.2d 378;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   The remaining submission of the plaintiffs, which consisted of an unaffirmed magnetic resonance imaging report of the injured plaintiff's lumbosacral spine dated February 24, 2003, was also without probative value in opposing the cross motion since that submission was unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Bycinthe v. Kombos, 29 A.D.3d 845, 815 N.Y.S.2d 693;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692).