LUCKEY v. BAUCH (2005)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated February 27, 2004, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

In support of their motion for summary judgment, the defendants submitted a transcript of the plaintiff's deposition testimony and copies of her medical records (see Hodges v. Jones, 238 A.D.2d 962, 661 N.Y.S.2d 159).   When considered with the affirmed medical reports of their examining orthopedist and neurologist, the defendants' evidence was sufficient to make a prima facie showing that 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 burden therefore shifted to the plaintiff to come forward with “competent admissible medical evidence,” based on objective findings, sufficient to raise a triable issue of fact that she sustained a serious injury (McLoyrd v. Pennypacker, 178 A.D.2d 227, 228, 577 N.Y.S.2d 272).   The plaintiff failed to meet her burden.   The plaintiff submitted numerous inadmissible, unsworn medical reports (see Pagano v. Kingsbury, 182 A.D.2d 268, 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), which her expert improperly relied upon in making his diagnosis (see Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).   Moreover, the affirmed medical report of her expert failed to adequately account for the injuries to the plaintiff's neck and back as a result of two other motor vehicle accidents, one which occurred before the subject accident, and one which occurred subsequent to the subject accident (see Rogers v. Chiarelli, 10 A.D.3d 355, 781 N.Y.S.2d 368;  McNeil v. Dixon, 9 A.D.3d 481, 482-483, 780 N.Y.S.2d 635;  Omar v. Goodman, 295 A.D.2d 413, 414-415, 743 N.Y.S.2d 568).

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.