SILKOWSKI v. ALVAREZ (2005)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated June 16, 2003, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury as a result of the subject accident (see Insurance Law § 5102 [d];  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281;  Meely v. 4 G's Truck Renting Co., 16 A.D.3d 26, 789 N.Y.S.2d 277).   The plaintiff, in opposition, failed to raise a triable issue of fact as to whether she sustained a serious injury.   Contrary to the Supreme Court's determination, the plaintiff's expert was entitled to rely on the unaffirmed magnetic resonance imaging (hereinafter MRI) reports of the plaintiff's cervical and lumbosacral spines because the defendant's examining neurologist referred to them (see Ayzen v. Melendez, 299 A.D.2d 381, 749 N.Y.S.2d 445;  Perry v. Pagano, 267 A.D.2d 290, 699 N.Y.S.2d 882).   However, the affidavit of the plaintiff's expert simply adopted the findings in the unaffirmed MRI reports of, inter alia, bulging and herniated discs, without setting forth any objective evidence based on a recent examination of the plaintiff of the extent and duration of the physical limitations, if any, resulting from those disc injuries (see Kearse v. New York City Tr. Auth., supra ).   Under the circumstances, the Supreme Court properly determined that the plaintiff did not raise an issue of fact as to whether she sustained a serious injury (see Paul v. Trerotola, 11 A.D.3d 441, 782 N.Y.S.2d 773;  Grossman v. Wright, 268 A.D.2d 79, 84, 707 N.Y.S.2d 233).