DELPILAR v. BROWNE (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated April 12, 2000, 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.

The defendants established a prima facie case that the plaintiff did not sustain 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, the plaintiff submitted, inter alia, the affirmed medical report of his examining physician dated December 28, 1999, which stated that he suffered from chronic cervical and lumbosacral musculo-ligamentous strain and sprain, and left carpal tunnel syndrome.   The report, which was based on an examination of the plaintiff conducted over 2 1/212 years after the accident, did not provide any information concerning the nature of the plaintiff's medical treatment or any explanation for the gap between the date of the accident and the date of the examination (see, Welcome v. Diab, 273 A.D.2d 377, 711 N.Y.S.2d 329;   Perez v. Velez, 253 A.D.2d 865, 678 N.Y.S.2d 525;  Stowe v. Simmons, 253 A.D.2d 422, 676 N.Y.S.2d 638;  Medina v. Zalmen Reis & Assocs., 239 A.D.2d 394, 658 N.Y.S.2d 36).   The medical report failed to set forth the objective medical tests performed by the physician to determine that the plaintiff suffered specifically-quantified restrictions of motion in his neck and back (see, Monaco v. Davenport, 277 A.D.2d 209, 715 N.Y.S.2d 731;  Perovich v. Liotta, 273 A.D.2d 367, 710 N.Y.S.2d 908;  Harewood v. Aiken, 273 A.D.2d 199, 710 N.Y.S.2d 82;  Decayette v. Kreger Truck Renting, 260 A.D.2d 342, 687 N.Y.S.2d 680). Moreover, the plaintiff's physician improperly relied upon unsworn test results in reaching his conclusion that the plaintiff is suffering from left carpal tunnel syndrome (see, Goldin v. Lee, 275 A.D.2d 341, 712 N.Y.S.2d 154;  Napoli v. Cunningham, 273 A.D.2d 366, 710 N.Y.S.2d 919;   Diaz v. Wiggins, 271 A.D.2d 639, 707 N.Y.S.2d 870;  Williams v. Hughes, 256 A.D.2d 461, 682 N.Y.S.2d 401).

Furthermore, the plaintiff failed to demonstrate that he had sustained a medically-determined injury or impairment of a non-permanent nature which prevented him from performing all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Greene v. Miranda, 272 A.D.2d 441, 708 N.Y.S.2d 310;  Carpluk v. Friedman, 269 A.D.2d 349, 704 N.Y.S.2d 94;  Cullum v. Washington, 227 A.D.2d 370, 642 N.Y.S.2d 86;  Atamian v. Mintz, 216 A.D.2d 430, 628 N.Y.S.2d 367).

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment.