PONCE v. MAGLIULO (2004)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of Supreme Court, Nassau County (Winslow, J.), dated September 29, 2003, as granted the defendants' cross 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, with costs.

 The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the affirmed medical reports of their examining physicians (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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The affirmation of the plaintiff's physician submitted in opposition to the defendants' cross motion was insufficient to raise a triable issue of fact.   The plaintiff's physician, who first examined the plaintiff more than two years after the accident and more than two months after the defendants cross-moved for summary judgment, improperly relied upon a number of unsworn medical reports in arriving at his diagnosis (see Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765), and failed to account for the plaintiff's medical history of neck and back injuries in a motor vehicle accident just one year before the instant accident (see Dimenshteyn v. Caruso, 262 A.D.2d 348, 694 N.Y.S.2d 66).

Moreover, the plaintiff failed to submit any competent medical evidence which would support a claim that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days as a result of the subject accident (see 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;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  Bennett v. Reed, 263 A.D.2d 800, 693 N.Y.S.2d 738;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 499, 682 N.Y.S.2d 406).

Accordingly, the defendants were entitled to summary judgment dismissing the complaint.