MICHEL v. Beverly A. Francis, appellant. (2008)

In an action to recover damages for personal injuries, the defendant Beverly A. Francis appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated April 18, 2007, as denied her motion for summary judgment dismissing the complaint insofar as asserted against her 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 reversed insofar as appealed from, on the law, with costs payable by the respondent to the appellant, the appellant's motion for summary judgment dismissing the complaint insofar as asserted against her is granted and, upon searching the record, summary judgment is awarded to the defendant Kenneth Blake dismissing the complaint insofar as asserted against him.

 The appellant met her prima facie burden of showing 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49-50, 789 N.Y.S.2d 281).   In opposition, the plaintiff failed to raise a triable issue of fact.   The submissions of Dr. Allan Hausknecht and Dr. Charles DeMarco were without any probative value since they were unaffirmed (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, 844 N.Y.S.2d 71;  Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396;  see also Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   Moreover, the affirmation of Dr. David Lifschultz also was without any probative value since he clearly relied on the unsworn medical reports of other doctors in coming to his conclusions (see Malave v. Basikov, 45 A.D.3d 539, 845 N.Y.S.2d 415;  Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71;  Furrs v. Griffith, 43 A.D.3d 389, 841 N.Y.S.2d 594;  see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   The self-serving affidavit of the plaintiff was insufficient to raise a triable issue of fact (see Shvartsman v. Vildman, 47 A.D.3d 700, 849 N.Y.S.2d 600).

Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint insofar as asserted against her.

 Moreover, this Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court (cf. Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Marrache v. Akron Taxi Corp., 50 A.D.3d 973, 856 N.Y.S.2d 239;  Colon v. Vargas, 27 A.D.3d 512, 514, 811 N.Y.S.2d 755).   Upon searching the record, we award summary judgment to the defendant Kenneth Blake dismissing the complaint insofar as asserted against him (see CPLR 3212[b] ).