CODRINGTON II v. AHMAD (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated July 26, 2006, which denied their 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 reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendants met their 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's examining physician improperly relied on unsworn and unaffirmed reports of other physicians (see Elder v. Stokes, 35 A.D.3d 799, 828 N.Y.S.2d 138;  Felix v. New York City Tr. Auth., 32 A.D.3d 527, 528, 819 N.Y.S.2d 835;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   Therefore, the physician's report was without probative value in opposing the defendants' motion.   The plaintiff's affidavit was insufficient to show that he sustained a serious injury caused by the accident since there was no objective medical evidence to demonstrate that he sustained a serious injury (see Yakubov v. CG Trans Corp., 30 A.D.3d 509, 510, 817 N.Y.S.2d 353;  Davis v. New York City Tr. Auth., 294 A.D.2d 531, 531-532, 742 N.Y.S.2d 658).   The plaintiff's remaining submissions were without probative value in opposing the motion since they were unsworn, unaffirmed, or uncertified (see Grasso v. Angerami, 79 N.Y.2d 813, 814-815, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Felix v. New York City Tr. Auth., supra at 528, 819 N.Y.S.2d 835;  Yakubov v. CG Trans Corp., supra;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692;  see also CPLR 4518 [c] ).