NKHEREANYE v. HILLAIRE (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated August 17, 2005, 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.

Contrary to the plaintiff's contention, the defendants established their prima facie entitlement to judgment as a matter of law through competent evidence that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject automobile 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;   D'Alba v. Yong-Ae Choi, 33 A.D.3d 650, 823 N.Y.S.2d 423;  Faulkner v. Steinman, 28 A.D.3d 604, 813 N.Y.S.2d 529;  Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124;  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.   Most of the plaintiff's medical submissions were without probative value because they were unsworn or unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 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, 587 N.Y.S.2d 692).   The affirmed medical report of the plaintiff's orthopedist also lacked probative value because it relied on the unsworn reports of others (see Baksh v. Shabi, 32 A.D.3d 525, 820 N.Y.S.2d 327;   Felix v. New York City Tr. Auth., 32 A.D.3d 527, 819 N.Y.S.2d 835;  Jian-Yu Zhang v. Qiang Wang, 24 A.D.3d 611, 808 N.Y.S.2d 340;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765).   The remainder of the plaintiff's submissions was insufficient to raise a triable issue of fact (see Brobeck v. Jolloh, 32 A.D.3d 526, 819 N.Y.S.2d 840).