WILLIAMS v. HUGHES (1998)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated September 29, 1997, which granted the motion of the defendant Jude Maxwell, in which the defendants Patricia Hughes and Sean Spears joined, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The defendants made a prima facie showing that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition to the motion for summary judgment, the plaintiff submitted the affirmation of her treating physician which stated that the plaintiff suffered from, inter alia, acromioclavicular joint separation of the left shoulder.   That physician's diagnosis appears to have been based upon his review of an unsworn X-ray report prepared by another doctor and an unsworn report of an orthopedist which was not attached to his affirmation, and upon which the plaintiff cannot rely (see, Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765).   This and the other conclusions reached by the treating physician were unsupported by acceptable objective proof, and were insufficient to defeat the motion for summary judgment (see, Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853;  Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124;  Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112;  Antoniou v. Duff, 204 A.D.2d 670, 612 N.Y.S.2d 430).

MEMORANDUM BY THE COURT.