SCOTTO v. AH RAM SUH (2008)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated May 1, 2007, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant met his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject 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, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

In opposition, the plaintiff failed to raise a triable issue of fact.   The reports of Dr. Arovas and Dr. Camp were unsworn, and hence, without probative value (see Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 850 N.Y.S.2d 114;  Verette v. Zia, 44 A.D.3d 747, 748, 844 N.Y.S.2d 71).   The proffered hospital records merely reflect neck strain, which does not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Washington v. Cross, 48 A.D.3d 457, 849 N.Y.S.2d 784).   The affirmation and report of Dr. Khabie failed to proximately relate any particular findings to the subject accident (see Vishnevsky v. Glassberg, 29 A.D.3d 680, 681, 815 N.Y.S.2d 152;  Shepley v. Helmerson, 306 A.D.2d 267, 760 N.Y.S.2d 228).   The reports of Dr. Mendoza, Dr. Scott Jones, Dr. Nicholas Jones, and Dr. Petrucci failed to demonstrate cervical spine or left shoulder range of motion limitations roughly contemporaneous with the subject accident (see D'Onofrio v. Floton, Inc., 45 A.D.3d 525, 845 N.Y.S.2d 421;  Morales v. Daves, 43 A.D.3d 1118, 841 N.Y.S.2d 793;  Rodriguez v. Cesar, 40 A.D.3d 731, 733, 835 N.Y.S.2d 438).   The MRI reports of Dr. Waxman and Dr. Diamond showing a disc herniation at C6-7 and a partial left shoulder rotator cuff tear fail to establish the extent of the alleged physical limitations resulting from the injury and their durations (see Casas v. Montero, 48 A.D.3d 728, 853 N.Y.S.2d 358;  Shvartsman v. Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600;   Tobias v. Chupenko, 41 A.D.3d 583, 584, 837 N.Y.S.2d 334).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.