DOMINGUEZ GIONTA v. SMITH (2003)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Henry, J.), dated May 10, 2002, which granted the defendant's 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 defendant made a prima facie showing 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, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition to the defendant's motion for summary judgment, the only medical evidence submitted in admissible form by the plaintiff was the affidavit of her treating physician, which did not provide any evidence of the extent or degree of the plaintiff's physical limitations and their duration (see Barbeito v. Kesev Taxi, 281 A.D.2d 379, 380, 721 N.Y.S.2d 279;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  Jackson v. New York City Tr. Auth., 273 A.D.2d 200, 708 N.Y.S.2d 469;  Greene v. Miranda, 272 A.D.2d 441, 708 N.Y.S.2d 310) or a qualitative assessment of the plaintiff's condition (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   Furthermore, the plaintiff's physician improperly relied upon the unsworn magnetic resonance imaging report of another physician (see Claude v. Clements, 301 A.D.2d 554, 756 N.Y.S.2d 57;  Philippe v. Ivory, 297 A.D.2d 666, 747 N.Y.S.2d 184;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765).   Accordingly, the motion for summary judgment was properly granted.