MALAVE v. BASIKOV (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated August 4, 2006, which granted the defendants' 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 affirmed, with costs.

 The defendants met their prima facie burden on their motion for summary judgment by 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;  see also Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773).   In opposition, the plaintiff failed to raise a triable issue of fact.   The plaintiff principally relied upon the submission of voluminous unaffirmed reports and uncertified medical records, which were without any probative value (see Rodriguez v. Cesar, 40 A.D.3d 731, 732-733, 835 N.Y.S.2d 438).   The affirmation of the plaintiff's treating physician also lacked any probative value since he relied on unaffirmed reports of others (see Furrs v. Griffith, 43 A.D.3d 389, 841 N.Y.S.2d 594;  Phillips v. Zilinsky, 39 A.D.3d 728, 834 N.Y.S.2d 299;  Porto v. Blum, 39 A.D.3d 614, 615, 833 N.Y.S.2d 245), and failed to compare any of his own findings on range of motion to what is normal (see Nociforo v. Penna, 42 A.D.3d 514, 515, 840 N.Y.S.2d 396;  McNulty v. Buglino, 40 A.D.3d 591, 836 N.Y.S.2d 198).