SAMMUT v. DAVIS (2005)

In an action, inter alia, to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated May 21, 2004, which denied their motion, in effect, for summary judgment dismissing the first and second causes of action to recover damages for personal injuries and loss of services on the ground that the plaintiff Philip Sammut did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the first and second causes of action are dismissed.

 The defendants made a prima facie showing that the plaintiff Philip Sammut (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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 unsworn records of the plaintiff's chiropractor were inadmissible (see Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692;  Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76).   Similarly, unsworn magnetic resonance imaging (hereinafter MRI) reports were insufficient to refute the affirmation of the defendants' radiologist that the MRI films failed to reveal any evidence of herniated or bulging discs.   Furthermore, the affirmation of the plaintiff's examining physician was insufficient to raise a triable issue of fact, as he improperly relied upon unsworn MRI reports and medical records (see Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765), and there was no adequate discussion of or explanation for the 3 1/212-year gap between the conclusion of the plaintiff's chiropractic treatments and the date of his examination (see Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).

Accordingly, the defendants' motion, in effect, for summary judgment dismissing the first and second causes of action should have been granted.