Sonia Delgado, Respondent, v. HAKIM (2001)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Posner, J.), dated September 28, 2000, as denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Sonia Delgado on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted by the respondent.

The appellants established a prima facie case that the respondent 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).   The evidence submitted by the respondent in opposition to the motion was insufficient to raise a triable issue of fact.   The affidavit of the respondent's examining chiropractor, which was based on an examination conducted four years after the accident, failed to indicate what objective tests were used to quantify the alleged restrictions of motion in her cervical and lumbar spines (see, Harney v. Tombstone Pizza Corp., 279 A.D.2d 609, 719 N.Y.S.2d 704;  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).   Furthermore, the chiropractor improperly relied on the unsworn medical reports of other doctors in arriving at his conclusions (see, Monaco v. Davenport, supra;  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).   The respondent's self-serving assertions concerning, inter alia, her inability to perform cleaning chores, without more, were insufficient to show that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see, Herman v. Church, 276 A.D.2d 471, 714 N.Y.S.2d 87;  Turchuk v. Town of Wallkill, 255 A.D.2d 576, 681 N.Y.S.2d 72).