PALASEK v. MISITA (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 5, 2001, 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.

The defendants made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiff did not sustain a serious injury (see, Insurance Law § 5102[d];  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Thus, it was incumbent upon the plaintiff to raise a triable issue of fact.   The plaintiff failed to do so.   The affidavit of the plaintiff's examining physician was based on an examination conducted 5 1/212 years after the accident, improperly relied on unsworn medical reports and test results of other physicians (see, Trent v. Niewierowski, 281 A.D.2d 622, 722 N.Y.S.2d 68;  Goldin v. Lee, 275 A.D.2d 341, 712 N.Y.S.2d 154;  Diaz v. Wiggins, 271 A.D.2d 639, 707 N.Y.S.2d 870), and failed to explain the nature of her medical treatment (see, Massey v. She Shang Jung, 280 A.D.2d 586, 720 N.Y.S.2d 812;  Decayette v. Kreger Truck Renting, 260 A.D.2d 342, 687 N.Y.S.2d 680).   The affidavit also failed to set forth the objective medical tests performed by the examining physician to determine that the plaintiff suffered specifically-quantified restrictions of motion in her neck and back (see, Delpilar v. Browne, 282 A.D.2d 647, 723 N.Y.S.2d 241;  Monaco v. Davenport, 277 A.D.2d 209, 715 N.Y.S.2d 731;  Harewood v. Aiken, 273 A.D.2d 199, 710 N.Y.S.2d 82).   Therefore, the defendants' motion for summary judgment dismissing the complaint was properly granted.